International Guarantee Consent Deed, dated as of September 30,2008



 Exhibit 10.4 
 

 
 International Guarantee Consent Deed 
 Each person listed in Schedule 1 
 Guarantors 
 ResMed
Limited 
 Borrower 
 HSBC Bank Australia Limited 
 Security Trustee 
 Execution copy 
 Clayton Utz 
 Lawyers 
 Levels 19-35 No. 1 O’Connell 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 
 Our reference 15136/15104/80079617 







 International Guarantee Consent Deed dated 30 September 2008 
  

			
	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 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 a USD50,000,000 increase in the Facilities under and as defined in the Amended Agreement (the “Further Loan”).


  

	C.	The Financiers have agreed to provide the Further Loan to the Borrower. The Guarantors wish to consent to the Further Loan and to acknowledge that the Guarantee will continue to
secure the Obligations including, without limitation, under or in connection with the Further Loan. 

 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 Amendment and Restatement Agreement.

 “Amendment and Restatement Agreement” means the document entitled “Amendment and Restatement Agreement” dated on
or about the date of this deed 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. 
 “Original Facility Agreement” means the syndicated facility
agreement dated 8 June 2006 and entered into by the Borrower, the Security Trustee and others. 
  

	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 

 Subject to clause 3,
each Guarantor unconditionally: 
  

	 	(a)	consents to the Further Loan and to the Borrower entering into the Amendment and Restatement Agreement; 

  

	 	(b)	ratifies and confirms the Guarantee as amended by clause 3 below; 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 Amendment and Restatement Agreement or the provision of the Further Loan;


  

	 	(ii)	will continue to guarantee the Obligations including, without limitation, under or in connection with the Further Loan; and 

  

	 	(iii)	remain in full force and effect and continue to be binding notwithstanding the entry by the Borrower into the Amendment and Restatement Agreement and the provision of the Further
Loan. 

  

	3.	Guarantee 

 Notwithstanding clause 2, the parties
agree that: 
  

	 	(a)	clause 4 of the Guarantee is amended by deleting the “and” at the end of clause 4(b)(ii); replacing “.” with “; and” at the end of clause 4(b)(iii);
and inserting a new clause 4(b)(iv) as follows: 

 “all amounts drawn under the Tranche D Facility which have been on-lent
to ResMed SA, together with all amounts payable under or in connection with the Tranche D Facility in respect of the amounts on-lent (including, without limitation, interest, fees and expenses).”; and 
  

	 	(b)	clause 4 of the Guarantee (as amended by clause 3(a) above) applies notwithstanding any other provision of this deed to the contrary. 

  

	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; and 









	 	(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). 

  

	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. 







 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








 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









	
	Executed by ResMed SAS:
	
	 /s/ Anne Reiser

	Signature
	By Anne Reiser duly empowered for the purposes hereof









					
	 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 (17 September, 2008)
	 		 	  

	Name	 		 	Name









					
	Executed by ResMed (UK) Limited acting by:	 		 	
			
	 /s/ R.W. Sommerville
	 		 	 /s/ M. Hastings

	Signature of Director	 		 	Signature of Secretary/other Director
			
	 R.W. Somerville
	 		 	 M. Hastings

	Name of Director in full	 		 	Name of Secretary/other Director in full









									
	Executed by Take Air Medical Handels-GmbH:	 		 	
			
	  
	 		 	  

	Signature of authorised person	 		 	Signature of authorised person
			
	 /s/ Petra Richters
	 		 	 /s/ Günter Gromotka

	Name:	 	Petra Richters, Commercial Director	 		 	Name:	 	Günter Gromotka, Finance Director








 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
 not received any notice of
the revocation of such
 Power of Attorney, in the presence of:
	 		 	 /s/ Garry James Richmond

	 	 	Signature of Attorney
			
	 /s/ Elin Schwarzenecker
	 		 	 Garry James Richmond

	Signature of Witness	 		 	Name of Attorney in full
			
	 Elin Schwarzenecker
	 		 	
	Name of Witness in full	 		 	








 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