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Federal Register / Vol. 86, No. 34 / Tuesday, February 23, 2021 / Rules and Regulations
than one business day after the date on which the filing was to be made.
4 Any filing of amendments or supplements to an Offering Document must include two copies, one of which must be marked to indicate clearly and precisely, by underlining or in some other conspicuous manner, the changes made from the previously filed Offering Document.
m Filing fees. 1 The NCUA may require filing fees to accompany certain filings made under this subpart before it will accept those filings. If the NCUA
requires the aforementioned filing fee, the NCUA will publish an applicable fee schedule on its website at http
www.NCUA.gov.
2 Filing fees must be paid to the NCUA by electronic transfer.
702.409 Preapproval for federally insured, state-chartered credit unions to issue Subordinated Debt.

a A federally insured, state-chartered credit union is required to submit the information required under 702.408
and, if applicable, paragraph b of this section to both the Appropriate Supervision Office and its state supervisory authority. The Appropriate Supervision Office will issue decisions approving a federally insured, statechartered credit unions application only after obtaining the concurrence of the federally insured, state-chartered credit unions state supervisory authority. The NCUA will notify a federally insured, state-chartered credit unions state supervisory authority before issuing a decision to approve for use a federally insured, state-chartered credit unions Offering Document and any amendments thereto, under 702.408, if applicable.
b If the Appropriate Supervision Office has reason to believe that an issuance by a federally insured, statechartered credit union under this subpart could subject that federally insured, state-chartered credit union to Federal income taxation, the Appropriate Supervision Office may require the federally insured, statechartered credit union to provide:
1 A written legal opinion, satisfactory to the NCUA, from nationally recognized tax counsel or letter from the Internal Revenue Service indicating whether the proposed Subordinated Debt would be classified as capital stock for Federal income tax purposes and, if so, describing any material impact of Federal income taxes on the federally insured, state-chartered credit unions financial condition; or 2 A Pro Forma Financial Statement balance sheet, income statement, and statement of cash flows, covering a
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minimum of two years, that shows the impact of the federally insured, statechartered credit union being subject to Federal income tax.
c If the Appropriate Supervision Office requires additional information from a federally insured, state-chartered credit union under paragraph b of this section, the federally insured, statechartered credit union may determine, in its sole discretion, whether the information it provides is in the form described in paragraph b1 or 2 of this section.
702.410 Interest payments on Subordinated Debt.

a Requirements for interest payments. An Issuing Credit Union is prohibited from paying interest on Subordinated Debt in accordance with 702.109.
b Accrual of interest.
Notwithstanding nonpayment pursuant to paragraph a of this section, interest on the Subordinated Debt may continue to accrue according to terms provided for in the Subordinated Debt Note and as otherwise permitted in this subpart.
c Interest safe harbor. Except as otherwise provided in this section, the NCUA shall not impose a discretionary supervisory action that requires the Issuing Credit Union to suspend interest with respect to the Subordinated Debt if:
1 The issuance and sale of the Subordinated Debt complies with all requirements of this subpart;
2 The Subordinated Debt is issued and sold in an arms-length, bona fide transaction;
3 The Subordinated Debt was issued and sold in the ordinary course of business, with no intent to hinder, delay, or defraud the Issuing Credit Union or its creditors; and 4 The Subordinated Debt was issued and sold for adequate consideration in U.S. dollars.
d Authority, rights, and powers of the NCUA and the NCUA Board. This section does not waive, limit, or otherwise affect the authority, rights, or powers of the NCUA or the NCUA
Board in any capacity, including the NCUA Board as conservator or liquidating agent, to take any action or to exercise any power not specifically mentioned, including but not limited to any rights, powers, or remedies of the NCUA Board as conservator or liquidating agent regarding transfers or other conveyances taken in contemplation of the Issuing Credit Unions insolvency or with the intent to hinder, delay, or defraud the Issuing Credit Union or the creditors of such Issuing Credit Union, or that is fraudulent under applicable law.

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702.411 Prior written approval to prepay Subordinated Debt.

a Prepayment option. An Issuing Credit Union may include in the terms of its Subordinated Debt an option that allows the Issuing Credit Union to prepay the Subordinated Debt in whole or in part prior to maturity, provided, however, that the Issuing Credit Union is required to:
1 Clearly disclose the requirements of this section in the Subordinated Debt Note; and 2 Obtain approval under paragraph b of this section before exercising a prepayment option.
b Prepayment application. Before an Issuing Credit Union can, in whole or in part, prepay Subordinated Debt prior to maturity, the Issuing Credit Union must first submit to the Appropriate Supervision Office an application that must include, at a minimum, the information required in paragraph d of this section.
c Federally insured, state-chartered credit union prepayment applications.
Before a federally insured, statechartered credit union may submit an application for prepayment to the Appropriate Supervision Office, it must obtain written approval from its state supervisory authority to prepay the Subordinated Debt it is proposing to prepay. A federally insured, statechartered credit union must provide evidence of such approval as part of its application to the Appropriate Supervision Office.
d Application contents. An Issuing Credit Unions application to prepay Subordinated Debt must include, at a minimum, the following:
1 A copy of the Subordinated Debt Note and any agreements reflecting the terms and conditions of the Subordinated Debt the Issuing Credit Union is proposing to prepay;
2 An explanation why the Issuing Credit Union believes it still would hold an amount of capital commensurate with its risk exposure notwithstanding the proposed prepayment or a description of the replacement Subordinated Debt, including the amount of such instrument, and the time frame for issuance, the Issuing Credit Union is proposing to use to replace the prepaid Subordinated Debt;
and 3 Any additional information the Appropriate Supervision Office requests.
e Decision on application to prepay.
1 Within 45 calendar days which may be extended by the Appropriate Supervision Office after the date of receipt of a complete application, the Appropriate Supervision Office will
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