Document ID: chunk:federal_register_of_legislation:F2023L00684:body:0:p28
Version: federal_register_of_legislation:F2023L00684
Segment Type: other
Provision Reference: 
Character Range: 70271–73067

subject to the laws of a foreign country except that the terms and conditions of the instrument that relate to non-viability conversion or write-off must be subject to the laws of an Australian jurisdiction.
 3. Where the instrument, whether issued by the regulated institution or another member of the Level 2 insurance group to which the regulated institution belongs (including overseas subsidiaries) is subject to the laws of a foreign country, the regulated institution must also ensure that the instrument satisfies all relevant eligibility criteria applicable to the instrument under this Attachment are enforceable under the laws of that jurisdiction.
 4. APRA may require the regulated institution to provide an independent expert opinion, addressed to APRA by a firm or practitioner of APRA's choice and at the regulated institution's expense, confirming that the instrument satisfies all applicable criteria for an Additional Tier 1 Capital instrument under this Prudential Standard.

Attachment D – Criteria for inclusion in Tier 2 Capital
 1. To be classified as Tier 2 Capital, an instrument must satisfy all of the criteria in this Attachment.
 2. The instrument must be paid-up and the amount must be irrevocably received by the issuer.
 3. The instrument represents, prior to any conversion to Common Equity Tier 1 Capital (refer to Attachment E to this Prudential Standard), the most subordinated claim in liquidation of the issuer after Common Equity Tier 1 Capital instruments and Additional Tier 1 Capital instruments. Where an issuer is a holding company, any claim in relation to the instrument must be subordinate to the claims of general creditors of the holding company.
 4. The paid-up amount of the instrument, or any future payments related to the instrument, is neither secured nor covered by a guarantee of the issuer or related entity, or other arrangement that legally or economically enhances the seniority of the claim. The instrument may not be secured or otherwise subject to netting or offset of claims on behalf of the holder or the issuer of the instrument.
 5. The principal amount of the instrument:
     1. has a minimum maturity of at least five years[34]; and
     2. is only recognised in Tier 2 Capital (and so in the capital base) in the five years prior to maturity on a straight-line amortised basis (refer to paragraph 21 to this Attachment).
 6. The instrument contains no step-ups or other incentives to redeem. The issuer and any other member of a group to which the issuer belongs must not create an expectation at issuance that the instrument will be bought back, redeemed or cancelled before its contractual maturity. The contractual terms of the instrument must not provide any feature that might give rise to such an expectation.[35]
 7.