Document ID: chunk:federal_register_of_legislation:F2023L00684:body:0:p36
Version: federal_register_of_legislation:F2023L00684
Segment Type: other
Provision Reference: 
Character Range: 90504–93375

of paragraph 35(b), an event of default clause includes a clause specifying the following events:
     1. the exercise or non-exercise of discretions within the Tier 2 Capital instrument;
     2. an adverse event or change, however so described or determined, occurring in respect of the Tier 2 Capital instrument; and
     3. any consequence arising from, or any action taken or intended to prevent[43], the above events or a default by the issuer under the Tier 2 Capital instrument,
but does not include a clause specifying the irrevocable winding up (that is, either by way of an effective resolution by shareholders or members for winding up, or a court order has been made, and the time for appeal of the decision has passed) of the issuer.
 1. Where issue documentation, marketing of an instrument, or any ongoing dealings with investors suggest that the instrument has attributes not consistent with the eligibility requirements in this Attachment for Tier 2 Capital instruments, the instrument is ineligible to be included in Tier 2 Capital.
 2. The instrument, whether issued by the regulated institution or another member of the Level 2 insurance group to which the regulated institution belongs (including any overseas subsidiaries) may be subject to the laws of a foreign country, except that the terms of the instrument that relate to non-viability conversion or write-off (refer to Attachment E to this Prudential Standard) must be subject to the laws of an Australian jurisdiction.
 3. Where the instrument, whether issued by the regulated institution or another member of a Level 2 insurance group to which the regulated institution belongs (including any overseas subsidiaries), is subject to the laws of a foreign country, the regulated institution must also ensure 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 meets the requirements of this Prudential Standard.

Attachment E – Loss absorption at the point of non-viability: Additional Tier 1 and Tier 2 Capital instruments
 1. An Additional Tier 1 Capital or Tier 2 Capital instrument must include a provision whereby upon the earliest occurrence of a non-viability trigger event, it will be immediately and irrevocably:
 2. converted into the ordinary shares of the regulated institution or its ultimate parent, which must be listed at the time the instrument is issued. For an unlisted regulated institution with no listed upstream entity at the time the instrument is issued, the instrument is to be converted into the unlisted ordinary shares of the regulated institution. Where