exv10w118






Exhibit 10.118


 


Deed Poll of Indemnification




Dated 15 July 2011



Reynolds Group Holdings Limited



for the benefit and in favour of

the Indemnitees defined in this Deed Poll of Indemnification

(Luxembourg)



 

 









 





Contents




	 	 	 	 	 
	Clause	 	Page	 
	1. Definitions
	 	 	2	 
	2. Indemnification
	 	 	2	 
	3. Limitations on Indemnification
	 	 	2	 
	4. Indemnification Procedure
	 	 	3	 
	5. Severability
	 	 	3	 
	6. Governing law
	 	 	4	 
	7. Amendments
	 	 	4	 
	8. Continuation of Agreement
	 	 	4	 
	 
	 	 	 	 
	Schedule
	 	 	 	 
	 
	 	 	 	 
	1. Part A:
Luxembourg Obligors
	 	 	6	 
	2. Part B: List of Indemnitees
	 	 	7	 






 









 





THIS DEED POLL OF INDEMNIFICATION is made on 15 July 2011




BY:



Reynolds Group Holdings Limited, a company registered in New Zealand whose registered office is at
c/o Bell Gully (GJM), Level 22, Vera Centre, 48 Shortland Street, Auckland, New Zealand (“RGHL”);




IN FAVOUR AND FOR THE BENEFIT OF:



Each Indemnitee (as defined below).



BACKGROUND





	A.	 	As part of the Reynolds group of companies (the “Reynolds Group”), each
Luxembourg Obligor (as defined below) is a guarantor, security provider
and/or issuer (as relevant) in respect of the Reynolds Group’s existing
financing arrangements (the “Existing Financing Arrangements”).
	 
	B.	 	It is currently intended that RGHL will indirectly acquire Graham Packaging
Company Inc. (“GPC”) through the merger of an indirect wholly owned
subsidiary of RGHL with and into GPC, with GPC surviving such merger and
becoming an indirect wholly owned subsidiary of RGHL (the “Acquisition”).
	 
	C.	 	In order to fund the Acquisition and the associated costs and transactions
required to effect the Acquisition, certain members of the Reynolds Group
intend to incur additional indebtedness; in connection with this additional
indebtedness, the Existing Financing Arrangements may be supplemented
and/or amended (collectively, the “Financing Transactions”).
	 
	 	 	In addition, certain of the Luxembourg Obligors may be required to take certain steps as
may be necessary or desirable to effect corporate restructuring(s) and other steps
necessary or desirable to implement the Acquisition and may also participate in and take
steps in connection with the acquisition of certain of the GPC entities, and associated
steps to fund such acquisitions, by members of the Reynolds Group upon or following
closing of the Acquisition, including, without limitation, by way of entry into any
acquisition agreement(s), loan agreements, capital increases and/or any other related and
necessary documents (the “Acquisition and Structuring Transactions”).
	 
	 	 	Furthermore, certain of the Luxembourg Obligors may be required to take certain steps as
may be necessary or desirable to effect other acquisitions, dispositions, financings,
refinancings or corporate restructurings in connection with any future acquisition,
disposition, financing, corporate restructuring or any other transaction entered into by
members of the Reynolds Group, including, without limitation, by way of entry into any
acquisition agreement, indenture, credit or other financing agreement, intercreditor
agreement,




 









 






	 	 	guarantee, security document, purchase agreement, registration rights agreement or any
other document, or any joinder to, or amendment or affirmation of, such document (each such
transaction, a “Prospective Transaction”, and collectively, the “Prospective
Transactions”).
	 
	 	 	(The Financing Transactions together with the Acquisition and Structuring Transactions and
the Prospective Transactions are, collectively, the “Transactions”, and the
documents relating to the Transactions, are collectively, the “Transaction
Documents”.)
	 
	A.	 	RGHL has agreed to provide an indemnity to the Indemnitees (as defined below) in respect
of the Transactions, as further described below.




It is the intention of RGHL that this document be executed as a deed poll (this “Deed
Poll”) in favour and for the benefit of each Indemnitee.



THIS DEED POLL WITNESSES as follows:





	1.	 	Definitions
	 
	 	 	“Indemnitee” means each person listed in Part B of the Schedule to this Deed Poll
and, after the date of this Deed Poll, any person serving as or elected to or appointed to
serve as a director of a Luxembourg Obligor; and
	 
	 	 	“Luxembourg Obligor” means each company listed in Part A of the Schedule to this
Deed Poll.
	 
	2.	 	Indemnification
	 
	 	 	Subject to an Indemnitee complying with the procedures of clause 4 below, RGHL shall
indemnify each Indemnitee against all legal expenses, losses, liabilities, judgments,
fines, penalties and amounts paid in settlement (including all interest, assessments and
other charges in connection therewith) (collectively, the “Indemnified
Liabilities”) incurred by an Indemnitee or on an Indemnitee’s behalf in connection with
any proceeding resulting from or relating to decisions the Indemnitee made or any actions
the Indemnitee took on behalf of a Luxembourg Obligor in his or her capacity as a director
or supervisory board member of that company in connection with any Transactions or the
approval or execution of any Transaction Document or associated corporate authorization or
resolutions or documents in relation to the Transactions.
	 
	3.	 	Limitations on Indemnification
	 
	 	 	Notwithstanding any other provision of this Deed Poll, an Indemnitee shall not be entitled
to indemnification under this Deed Poll:






	 	(a)	 	to the extent that such indemnification is not permitted by applicable laws;
or
	 
	 	(b)	 	to the extent such Indemnified Liabilities are the result of the gross
negligence, bad faith or wilful misconduct of the Indemnitee; or




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	 	(c)	 	to the extent that payment is actually made, or for which payment is
available, to or on behalf of the relevant Indemnitee under an insurance policy,
except in respect of any amount in excess of the limits of liability of such policy or
any applicable deductible for such policy; or
	 
	 	(d)	 	to the extent that payment has or will be made to the relevant Indemnitee by
a Luxembourg Obligor or any affiliate of RGHL otherwise than pursuant to this Deed
Poll; or
	 
	 	(e)	 	in connection with any proceeding (or part thereof) or appeal in relation to
a proceeding initiated by an Indemnitee, unless:






	 	(i)	 	such indemnification is expressly required to be made by law,
	 
	 	(ii)	 	the proceeding was authorised by the shareholder(s) (or
other
decision making organ) of the relevant Luxembourg Obligor; or
	 
	 	(iii)	 	such indemnification is provided by the relevant Luxembourg
Obligor, in its sole discretion, pursuant to the powers vested in
the Luxembourg Obligor under applicable law.






	4.	 	Indemnification Procedure
	 
	4.1	 	To qualify for indemnification under this Deed Poll, each Indemnitee shall give RGHL notice
in writing as soon as practicable of any proceeding in relation to that Indemnitee for which
indemnification will or could be sought under this Deed Poll.
	 
	4.2	 	To obtain indemnification payments or advances under this Deed Poll, an Indemnitee shall
submit to RGHL a written request therefore, together with such invoices or other supporting
information as may be reasonably requested by RGHL and reasonably available to the relevant
Indemnitee.
	 
	4.3	 	Subject to clauses 4.2 and 4.4, RGHL shall make such indemnification payment within 30
business days of receipt of such invoices and supporting information.
	 
	4.4	 	There shall be no presumption in favour of indemnification. If there is a dispute between
RGHL and an Indemnitee as to whether that Indemnitee is entitled to indemnification, then
independent legal counsel shall be selected by the board of directors of RGHL to make such
determination. The selected independent legal counsel shall make such determination within 30
business days of being selected and the decision of such independent legal counsel shall be
binding upon all RGHL and the relevant Indemnitee.
	 
	5.	 	Severability
	 
	 	 	If any provision or provisions of this Deed Poll shall be held to be invalid, illegal or
unenforceable for any reason, the validity, legality and enforceability of the remaining
provisions of this Deed Poll shall not in any way be affected or impaired thereby and shall
remain enforceable to the fullest extent permitted by law.




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	6.	 	Governing law
	 
	 	 	This Deed Poll shall be governed by and its provisions construed in accordance with New
Zealand law.
	 
	7.	 	Amendments
	 
	 	 	No amendment or modification of this Deed Poll shall be effective unless it is approved in
writing by each Indemnitee having the benefit of this Deed Poll.
	 
	8.	 	Continuation of Agreement
	 
	 	 	This Deed Poll shall remain in effect in favour and for the benefit of each Indemnitee with
respect to any action or failure to act of such Indemnitee during the term of service of
such Indemnitee as a director of the relevant Luxembourg Obligor, whether or not the term
of service of such Indemnitee has concluded.




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IN WITNESS of which this Deed Poll has been executed and has been delivered on the date stated at
the beginning of this Deed Poll for the benefit and in favour of each Indemnitee.




Reynolds Group Holdings Limited




	 	 	 	 	 
	 	 	 
	 	/s/ Gregory Alan Cole
 	 
	 	Name:  	Gregory Alan Cole 	 



	 	 	 	 	 
	 	                              FRamsay
 	 
	 	Signature of witness 	 
	 	 	 
	 	                              SECRETARY
 	 
	 	Occupation      	 
	 	 	 
	 	                             AUCKLAND
 	 
	 	City of Residence      	 
	 	 	 



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Schedule 



Part A


Luxembourg Obligor




	•	 	Beverage Packaging Holdings (Luxembourg) I S.A.
	 
	•	 	Beverage Packaging Holdings (Luxembourg) II S.A.
	 
	•	 	Beverage Packaging Holdings (Luxembourg) III S.a r.l.
	 
	•	 	Reynolds Group Issuer (Luxembourg) S.A.
	 
	•	 	Evergreen Packaging (Luxembourg) S.a r.l.




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Part B 




List of Indemnitees




	•	 	Gregory Alan Cole
	 
	•	 	Olivier Dorier
	 
	•	 	Stewart Kam-Cheong
	 
	•	 	Herman Schommarz
	 
	•	 	Helen Dorothy Golding
	 
	•	 	Allen Philip Hugh






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