exv10w39






Exhibit 10.39




 





Letter of Indemnification




Dated April 21, 2010




Rank Group Limited




for the benefit and in favour of



the Indemnitees defined in this Letter of Indemnification



(Guernsey — SIG)




 





 









 








Contents




	 	 	 	 	 
	Clause	 	Page	 
	1. Definitions
	 	 	2	 
	 
	 	 	 	 
	2. Indemnification
	 	 	3	 
	 
	 	 	 	 
	3. Limitations on Indemnification
	 	 	3	 
	 
	 	 	 	 
	4. Indemnification Procedure
	 	 	3	 
	 
	 	 	 	 
	5. Severability
	 	 	4	 
	 
	 	 	 	 
	6. Governing law and jurisdiction
	 	 	4	 
	 
	 	 	 	 
	7. Amendments
	 	 	4	 











 









 








THIS Letter of Indemnification is made on April 21, 2010




BY:



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




IN FAVOUR AND FOR THE BENEFIT OF:



Each Indemnitee (as defined below).




BACKGROUND





	A.	 	On 5 November 2009 Beverage Packaging Holdings (Luxembourg) III S.à r.l. acquired, both
directly and through a subsidiary, the Closure Systems International group of companies and
the Reynolds Consumer Products group of companies. The financing arrangements put in place for
this acquisition, and the original acquisition of the SIG group of companies, were amended or
replaced, including (without limitation) by (i) the entry into of a senior secured credit
agreement, dated 5 November 2009, between, among others, Reynolds Group Holdings Limited
(“RGHL”), the borrowers listed therein and Credit Suisse AG as administrative agent
(as subsequently amended, restated or otherwise modified from time to time, the “Senior
Credit Facilities”), (ii) the entry into of an indenture dated 5 November 2009 (the
“2009 Indenture”), in respect of senior secured notes due 2016 (the “2009
Notes”) and (iii) entry into certain intercreditor arrangements in respect of the Senior
Credit Facilities, the 2009 Notes, and certain senior notes and senior subordinated notes
issued in 2007 by Beverage Packaging Holdings (Luxembourg) II S.A. (together the “2007
Notes”) (collectively, the “Existing Financing”).






	B.	 	It is currently anticipated that RGHL will indirectly acquire (i) the Evergreen group of
companies (the “Evergreen Group”) from certain subsidiaries of the parent of the
Evergreen Group, Carter Holt Harvey Limited (“CHH”) and (ii) the business, assets and
liabilities of the Whakatane Paper Mill from CHH (collectively, the “Acquisition”).






	C.	 	In connection with the Acquisition, certain members of the Evergreen Group, RGHL and certain
of its subsidiaries will incur additional debt, and that the Existing Financing will be
supplemented and/or amended. The Guernsey Obligor (as defined below) may, among other things,
be required to do all or some of the following:




 









 












	 	1.	 	enter into a new indenture in respect of new unsecured notes (the
“Unsecured Notes”) issued by an indirect subsidiary of RGHL, including the
provision of unsecured guarantees in respect of such notes;






	 	2.	 	confirm that the guarantees and/or security provided by the Guernsey Obligor
in respect of the 2009 Notes extends to any additional senior secured notes, issued
either by way of (i) a supplement to the 2009 Indenture or (ii) a new senior notes
indenture (collectively, the Senior Secured Notes”);






	 	3.	 	confirm that the guarantees and/or security provided by the Guernsey Obligor
in respect of the Senior Credit Facilities extends to the additional debt incurred
either under (i) an incremental facility provided for in the Senior Credit Facilities
and/or (ii) an amendment to the Senior Credit Facilities (collectively, the “Bank
Debt”); and






	 	4.	 	enter into new, and/or amend existing, intercreditor arrangements in respect
of the Unsecured Notes, the Senior Secured Notes, the Bank Debt and the 2007 Notes,






	 	 	(collectively, the “Transactions”).






	D.	 	Rank has agreed to provide an indemnity to the Indemnitees in respect of the Transactions as
further described below.




It is the intention of Rank that this document be executed as a Letter of Indemnification in favour
and for the benefit of each Indemnitee.



THIS LETTER OF INDEMNIFICATION WITNESSES as follows:





	1.	 	Definitions






	 	 	“Guernsey Obligor” means each company listed in Part A to the Schedule to this
Letter of Indemnification.






	 	 	“Indemnitee” means each person listed in Part B to the Schedule to this Letter of
Indemnification.






	 	 	“Indemnitee Company” means, in relation to an Indemnitee, any Guernsey Obligor of
which an Indemnitee is a director.




 









 












	2.	 	Indemnification






	 	 	Rank shall upon first demand indemnify each Indemnitee against expenses, losses,
liabilities, judgments, fines, penalties and amounts paid in settlement (including all
interest, assessments and other charges in connection therewith) 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 an
Indemnitee Company in his or her capacity as a director of the Indemnitee Company on
written (including by e-mail or telefax) instruction from a direct or indirect shareholder
of the relevant Indemnitee Company in connection with any transactions or the approval or
execution of any resolutions or documents in relation to the Transactions.






	3.	 	Limitations on Indemnification






	 	 	Notwithstanding any other provision of this Letter of Indemnification, an Indemnitee shall
not be entitled to indemnification under this Letter of Indemnification:






	 	1.	 	to the extent that payment is actually made, or for which payment may be
immediately claimed, to or on behalf of the relevant Indemnitee under an insurance
policy, unless the Indemnitee assigns to Rank any related payments claims under such
insurance policy; or






	 	2.	 	to the extent that payment has or will be made to the relevant Indemnitee by
the Indemnitee Company or any affiliate of Rank otherwise than pursuant to this Letter
of Indemnification.






	4.	 	Indemnification Procedure






	A.	 	Each Indemnitee shall give Rank notice in writing (including by e-mail or telefax) as soon as
practicable of any proceeding in relation to that Indemnitee for which indemnification will or
could be sought under this Letter of Indemnification. To obtain indemnification payments or
advances under this Letter of Indemnification, an Indemnitee shall submit to Rank a written
request therefore, together with such invoices or other supporting information as may be
reasonably requested by Rank and reasonably available to the relevant Indemnitee. Rank shall
make such indemnification payment within 10 business days of receipt of such invoices and
supporting information.






	B.	 	Each Indemnitee shall be obliged as soon as practicable to claim his rights under any
applicable insurance policy and shall assign to Rank any related




 









 












	 	 	payments claims under such insurance policy. However, this clause 4.2 does not affect the
Indemnitee’s right to indemnification under clause 2 above.






	C.	 	For the avoidance of doubt, an Indemnitee shall not forego any rights to indemnification
under this Letter of Indemnification where he fails to give notice within the period specified
in sentence 1 (“as soon as practicable”) of this clause 4.






	5.	 	Severability






	 	 	If any provision or provisions of this Letter of Indemnification shall be held to be
invalid, illegal or unenforceable for any reason, the validity, legality and enforceability
of the remaining provisions of this Letter of Indemnification and this Letter of
Indemnification shall not in any way be affected or impaired thereby and shall remain
enforceable to the fullest extent permitted by law.






	6.	 	Governing law and jurisdiction






	 	 	This Letter of Indemnification shall be governed by and its provisions construed in
accordance with Swiss law. All the parties to this Letter of Indemnification irrevocably
agree that the courts of Zurich are to have exclusive jurisdiction to settle any dispute
arising out of or in connection with this Letter of Indemnification (including any dispute
regarding the existence, validity or termination of this Letter of Indemnification).






	7.	 	Amendments






	 	 	No amendment or modification of this Letter of Indemnification shall be effective unless it
is approved in writing by each Indemnitee having the benefit of this Letter of
Indemnification.




 









 











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




Rank Group Limited




	 	 	 	 	 
	 	 	 
	By: 	/s/ Graeme Hart
 	 
	 	Graeme Hart
 	 	 
	 	Position: Director 	 
	 	Address: 743 Riddell Rd, Glendowie, New Zealand 1005 	 	 



 









 






	 	 	 	 	 



Schedule




Part A



List of Guernsey Obligors




	•	 	SIG Asset Holdings Ltd




 









 











Part B




List of Indemnitees




	•	 	Marco Haussener






	•	 	Holger Dickers






	•	 	Joachim Frommherz






	•	 	David Hugh Richards






	•	 	Richard John Tee