exv10w31






Exhibit 10.31




 





Deed Poll of Indemnification



Dated April 21, 2010



Rank Group Limited



for the benefit and in favour of



the Indemnitees defined in this Deed Poll



(Luxembourg — Evergreen)



 




 









 





Contents




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






 









 






THIS Deed Poll 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, RGHL and certain of its subsidiaries will incur
additional debt, and that the Existing Financing will be supplemented and/or amended. Further,
certain members of the Evergreen Group will also incur additional debt, and will accede to the
Existing Financing, as supplemented and/or amended, and provide certain security and/or
guarantees. The Luxembourg 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.	 	accede to, and provide guarantees and/or security in respect of, the 2009
Notes, including (if relevant) 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.	 	accede to, and provide guarantees and/or security in respect of, the Senior
Credit Facilities, including 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”);






	 	4.	 	accede to, and provide subordinated guarantees in respect of, the 2007 Notes;
and






	 	5.	 	enter into certain 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 Deed Poll in favour and for the
benefit of each Indemnitee.



THIS LETTER OF INDEMNIFICATION WITNESSES as follows:





	1.	 	Definitions






	 	 	“Indemnitee” means each person listed in Part B to the Schedule to this Deed Poll.






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






	 	 	“Luxembourg Obligor” means the company listed in Part A to the Schedule to this
Deed Poll.






	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 Deed Poll, an Indemnitee shall not be entitled
to indemnification under this Deed Poll:






	 	1.	 	to the extent that such indemnification is not permitted by applicable laws;
or






	 	2.	 	to the extent such Indemnified Liabilities are the result of the gross
negligence, bad faith or wilful misconduct of the Indemnitee; or






	 	3.	 	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, except in respect of any amount in excess of the limits of liability of such
policy or any applicable deductible for such policy; or






	 	4.	 	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 Deed
Poll; or






	 	5.	 	in connection with any proceeding (or part thereof) 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 provide by the Luxembourg Obligor, in its sole
discretion, pursuant to the powers vested in the Luxembourg Obligor under
applicable law.






	4.	 	Indemnification Procedure






	A.	 	Each Indemnitee shall give Rank 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. To obtain indemnification payments or advances under this Deed Poll, 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 30 business days of receipt of such
invoices and supporting information.






	B.	 	There shall be no presumption in favour of indemnification. If there is a dispute between
Rank 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 Rank 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 Rank 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 and this Deed Poll 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 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.




 









 










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.




	 	 	 	 
	Rank Group Limited

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



 









 






	 	 	 	 	 



Schedule




Part A



Luxembourg Obligor




	•	 	Evergreen Packaging (Luxembourg) S.à r.l.





Part B



List of Indemnitees




	•	 	Gregory Cole
	 
	•	 	Stewart Kam-Cheong
	 
	•	 	Herman Schommarz