SECOND US GUARANTEE CONSENT DEED
Published on October 1, 2009
Exhibit 10.2
Second US Guarantee Consent Deed
Each person listed in Schedule 1
Guarantors
ResMed Limited
Borrower
HSBC Bank Australia Limited
Security Trustee
Execution Version
Clayton Utz
Lawyers
Levels 19-35 No. 1 OConnell Street Sydney NSW 2000 Australia
PO Box H3 Australia Square Sydney NSW 1215
T +61 2 9353 4000 F +61 2 8220 6700
www.claytonutz.com
Second US Guarantee Consent Deed dated 29th of Sept. 2009
| Parties |
Each person listed in Schedule 1 (each a US Guarantor and together the US Guarantors) | |
| ResMed Limited ABN 30 003 765 142 (Borrower) | ||
| HSBC Bank Australia Limited ABN 48 006 434 162 (in its capacity as Security Trustee) | ||
Background
| A. | By guarantee and indemnity (Guarantee) dated 8 June 2006 among the US Guarantors, the Borrower and the Security Trustee, the US Guarantors guaranteed to the Finance Parties the satisfaction and payment in full of the Obligations by each Debtor. |
| B. | The Borrower has requested the Financiers to provide an extension of (including a change in the pricing applicable to) the Tranche D Facility (the Extension). |
| C. | The Financier has agreed to provide the Extension to the Borrower. The US Guarantors wish to consent to the Extension and to acknowledge that the Guarantee will continue to secure the Obligations including, without limitation, under or in connection with the Extension. |
Operative provisions
| 1. | Definitions and interpretation |
| 1.1 | Definitions |
In this deed:
Amended Agreement means the Original Facility Agreement, as amended and restated by the Second Amendment and Restatement Deed.
Amendment and Restatement Agreement means the document entitled Amendment and Restatement Agreement dated 30 September 2008 between the Borrower, the Financier, the Facility Agent and the Security Trustee.
Facility Agent means HSBC Bank Australia Limited ABN 48 006 434 162.
Financier means The Hong Kong and Shanghai Banking Corporation Limited, Sydney Branch ABN 65 117 925 970.
Guarantor Consent Deed has the same meaning given to that term in the Amendment and Restatement Agreement.
Original Facility Agreement means the syndicated facility agreement dated 8 June 2006, as amended and restated on 30 September 2008 pursuant to the Amendment and Restatement Agreement, and entered into by the Borrower, the Security Trustee and others.
Second Amendment and Restatement Deed has the same meaning given to that term in the Amended Agreement.
Tranche D Facility has the same meaning given to that term in the Amended Agreement.
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| 1.2 | Guarantee |
Unless otherwise defined, expressions used in this deed have the meanings given to them in the Guarantee (including by way of incorporation from the Original Facility Agreement).
| 1.3 | Incorporation |
The provisions of clauses 1.3 and 13(b) of the Guarantee are incorporated into this deed as if set out in this deed.
| 1.4 | Capacity |
Clause 10 of the Guarantee applies, modified as necessary, as if set out in full in this deed.
| 1.5 | Facility Agreement |
This deed is a Finance Document for the purposes of (and as defined in) the Amended Agreement.
| 2. | Consent and Acknowledgement |
Each US Guarantor unconditionally:
| (a) | consents to the Extension and to the Borrower entering into the Second Amendment and Restatement Deed; |
| (b) | ratifies and confirms its execution of the Guarantee; and |
| (c) | acknowledges and agrees that its obligations under the Guarantee: |
| (i) | are not discharged, abrogated, diminished, prejudiced or otherwise affected in any way by the Second Amendment and Restatement Deed or the Extension; |
| (ii) | will continue to guarantee the Obligations including, without limitation, under or in connection with the Extension; and |
| (iii) | remain in full force and effect in accordance with the terms of the Guarantee and continue to be binding notwithstanding the entry by the Borrower into the Second Amendment and Restatement Deed and the Extension. |
| 3. | Law and Jurisdiction |
| 3.1 | Governing law |
This deed is governed by and must be construed according to the law applying in New South Wales.
| 3.2 | Jurisdiction |
Each party irrevocably:
| (a) | submits to the non-exclusive jurisdiction of the courts of New South Wales, and the courts competent to determine appeals from those courts, with respect to any proceedings which may be brought at any time relating to this deed; |
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| (b) | waives any objection it may now or in the future have to the venue of any proceedings, and any claim it may now or in the future have that any proceedings have been brought in an inconvenient forum, if that venue falls within clause 3.2 (a) and |
| (c) | (in the case of each US Guarantor) appoints ResMed Limited at its registered office from time to time to receive on its behalf process issued out of the courts of New South Wales in connection with this deed. ResMed Limited accepts this appointment. |
| 4. | Counterparts |
This deed may be executed in any number of counterparts and by the parties on separate counterparts. Each counterpart constitutes the agreement of each party who has executed and delivered that counterpart.
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EXECUTED as a deed.
Borrower
| Executed by ResMed Limited ABN 30 003 765 142 in accordance with section 127 of the Corporations Act by or in the presence of: |
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| /s/ Robert Douglas |
/s/ Gregory Lang |
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| Signature of Secretary/other Director | Signature of Director or sole Director and sole Secretary | |||
| ROBERT DOUGLAS |
GREGORY LANG |
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| Name of Secretary/other Director in full | Name of Director or sole Director and sole Secretary in full | |||
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Guarantors
| Executed by ResMed Inc. acting by: | ||||
| /s/ David Pendarvis |
/s/ Timothy Mackey |
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| Signature of authorised officer | Signature of Witness | |||
| Name: DAVID PENDARVIS | TIMOTHY MACKEY |
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| Title: SECRETARY | Name of Witness | |||
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| Executed by ResMed Inc. acting by: | ||||
| /s/ David Pendarvis |
/s/ Timothy Mackey |
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| Signature of authorised officer | Signature of Witness | |||
| Name: DAVID PENDARVIS | TIMOTHY MACKEY |
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| Title: SECRETARY | Name of Witness | |||
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Security Trustee
| Signed sealed and delivered for and on behalf of HSBC Bank Australia Limited ABN 48 006 434 162 by its Attorney under a Power of Attorney dated , and the Attorney declares that the Attorney has |
/s/ Garry James Richmond |
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| not received any notice of the revocation of such | Signature of Attorney | |||
| Power of Attorney, in the presence of: | ||||
| /s/ ME Connell |
Garry James Richmond |
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| Signature of Witness | Name of Attorney in full | |||
| Maree Elizabeth Connell |
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| Name of Witness in full | ||||
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Schedule 1 - Guarantors
| Name: | ResMed Inc. | |
| Address for notices: | 9001 Spectrum Center Blvd. San Diego, CA 92123 | |
| United States of America | ||
| Fax: | (1) 858 836 5517 | |
| For the attention of: | General Counsel | |
| Name: | ResMed Corp. | |
| Address for notices: | 9001 Spectrum Center Blvd. | |
| San Diego, CA 92123 | ||
| United States of America | ||
| Fax: | (1) 858 836 5517 | |
| For the attention of: | General Counsel | |
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