SECOND INTERNATIONAL GUARANTEE CONSENT DEED
Published on October 1, 2009
Exhibit 10.3
Second International 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 International Guarantee Consent Deed dated 30 September 2009
| Parties |
Each person listed in Schedule 1 (each a Guarantor and together the 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, as amended on 30 September 2008 pursuant to the Guarantor Consent Deed in relation to the Guarantee, between the Guarantors and the Security Trustee, the Guarantors guaranteed to the Finance Parties the satisfaction and payment in full of the Obligations. |
| 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 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.
Pledge has the same meaning given to that term in the Amended Agreement.
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.
1
| 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 15(b) of the Guarantee are incorporated into this deed as if set out in this deed.
| 1.4 | Capacity |
Clause 12 of the Guarantee applies, modified as necessary, as if set out in full in this deed.
| 1.5 | Finance Document |
This deed is a Finance Document for the purposes of the Amended Agreement.
| 2. | Consent and Acknowledgement |
Each 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 and continue to be binding notwithstanding the entry by the Borrower into the Second Amendment and Restatement Deed and the Extension. |
| 3. | Consent of Pledgor |
ResMed SAS, as the pledgor under the Pledge, unconditionally:
| (a) | ratifies and confirms its execution of the Pledge; and |
| (b) | acknowledges and agrees that its obligations under the Pledge: |
| (i) | are not discharged, abrogated, diminished, prejudiced or otherwise affected in any way by the Second Amendment and Restatement Deed or the Extension; and |
| (ii) | remain in full force and effect and continue to be binding notwithstanding the entry by the Borrower into the Second Amendment and Restatement Deed and the Extension. |
2
| 4. | Law and Jurisdiction |
| 4.1 | Governing law |
This deed is governed by and must be construed according to the law applying in New South Wales.
| 4.2 | 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; |
| (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 4.2(a); and |
| (c) | (in the case of each Guarantor other than the Borrower) 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. |
| 5. | 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.
3
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: | ||||
| /s/ Robert Douglas |
/s/ Gregory Lang |
|||
| Signature of Secretary/other Director | Signature of Director or sole Director and sole Secretary | |||
| ROBERT DOUGLAS |
GREGORY LANG |
|||
| Name of Secretary/other Director in full | Name of Director or sole Director and sole Secretary in full | |||
4
Guarantors
| Executed by ResMed Limited ABN 30 003 765 142 in accordance with section 127 of the Corporations Act by or in the presence of: | ||||
| /s/ Robert Douglas |
/s/ Gregory Lang |
|||
| Signature of Secretary/other Director | Signature of Director or sole Director and sole Secretary | |||
| ROBERT DOUGLAS |
GREGORY LANG |
|||
| Name of Secretary/other Director in full | Name of Director or sole Director and sole Secretary in full | |||
5
| Executed by ResMed SAS: |
| /s/ Anne Reiser |
| Signature By [Anne Reiser] duly empowered for the purposes hereof |
6
| Executed by ResMed GmbH & Co. KG represented by ResMed GmbH Verwaltung as its general partner: |
||||
| /s/ Frank Rebbert |
|
|||
| Signature of authorised person | Signature of authorised person | |||
| FRANK REBBERT |
|
|||
| Name | Name | |||
7
| Executed by ResMed (UK) Limited acting by: | ||||
| /s/ Ross William Sommerville |
/s/ Mark Alan Hastings |
|||
| Signature of Director | Signature of Secretary/other Director | |||
| ROSS WILLIAM SOMMERVILLE |
MARK ALAN HASTINGS |
|||
| Name of Director in full | Name of Secretary/other Director in full | |||
8
| Executed by Take Air Medical Handels-GmbH: | ||||
| /s/ Petra Richters |
|
|||
| Signature of authorised person | Signature of authorised person | |||
| Petra Richters |
|
|||
| Name | Name | |||
9
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 , | /s/ Garry James Richmond |
|||
| and the Attorney declares that the Attorney has not received any notice of the revocation of such Power of Attorney, in the presence of: | Signature of Attorney |
|||
| /s/ ME Connell |
Garry James Richmond |
|||
| Signature of Witness | Name of Attorney in full | |||
| Maree Elizabeth Connell |
||||
| Name of Witness in full | ||||
10
Schedule 1 - Guarantors
| Name: | ResMed SAS | |
| Address for notices: | Parc Technologique de Lyon, | |
| 292 Allee Jacques Monod, | ||
| 69791 Saint-Priest Cedex | ||
| France | ||
| Fax: | + 33 (0) 4 26 10 03 00 | |
| For the attention of: | Financial Controller | |
| Name: | ResMed GmbH & Co. KG | |
| Address for notices: | Fraunhoferstraße 16 | |
| 82152 Martinsried | ||
| Federal Republic of Germany | ||
| Fax: | +49 89 9901 10 55 | |
| For the attention of: | Financial Controller | |
| Name: | ResMed (UK) Limited | |
| Company number: | 02863553 | |
| Address for notices: | 96 Milton Park | |
| Abingdon | ||
| Oxfordshire OX14 4RY |
||
| United Kingdom | ||
| Fax: | +44 (0)1235 831 336 | |
| For the attention of: | Financial Controller | |
| Name: | Take Air Medical Handels-GmbH | |
| Address for notices: | Haferwende 40 | |
| 28357 Bremen | ||
| Federal Republic of Germany | ||
| Fax: | + 49 42 1489 93 10 | |
| For the attention of: | Financial Controller | |
| Name: | ResMed Limited | |
| Address: | 1 Elizabeth Macarthur Drive Bella Vista NSW 2153 |
|
| Australia | ||
| Fax: | +61 (0)2 8884 2015 | |
| For the attention of: | Chief Financial Officer | |
11