exv10w28






Exhibit 10.28




 





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



(United Kingdom — CSI & RCP)



 




 









 





Contents




	 	 	 	 	 
	Clause	 	Page	 
	1. Definitions
	 	 	4	 
	2. Indemnification
	 	 	4	 
	3. Limitations on Indemnification
	 	 	5	 
	4. Indemnification Procedure
	 	 	5	 
	5. Severability
	 	 	6	 
	6. Governing law
	 	 	6	 
	7. Amendments
	 	 	6	 
	8. Termination
	 	 	6	 
	 
	 	 	 	 
	Schedule
	 	 	 	 
	 
	 	 	 	 
	1. Part A: United Kingdom Guarantor
	 	 	8	 
	2. Part B: List of Indemnitees
	 	 	8	 






 









 





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, 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 United Kingdom Guarantor (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 United Kingdom
Guarantor 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 United Kingdom
Guarantor in respect of the Senior Credit Facilities extends to the additional debt
incurred either under (i) an incremental facility




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	 	 	 	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 as defined below in respect of the
Transactions as further described below.




It is the intention of Rank 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
	 
	 	 	“United Kingdom Guarantor” means each company listed in Part A of the Schedule to
this Deed Poll.
	 
	2.	 	Indemnification
	 
	 	 	Rank 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) 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 United
Kingdom Guarantor in his or her capacity as a director of that company on written
instruction from a direct or indirect shareholder of the relevant United Kingdom Guarantor
in connection with any transactions or the approval or execution of any resolutions or
documents in relation to the Transactions.




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	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 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
	 
	 	4.	 	to the extent that payment has or will be made to the relevant Indemnitee by
the United Kingdom Guarantor or any affiliate of Rank otherwise than pursuant to this
Deed Poll; or






	 	(i)	 	in connection with any proceeding (or part thereof)
initiated by an Indemnitee, unless:
	 
	 	(ii)	 	such indemnification is expressly required to be made by
law,
	 
	 	(iii)	 	the proceeding was authorised by the shareholder(s) (or
other decision making organ) of the relevant United Kingdom Guarantor; or
	 
	 	(iv)	 	such indemnification is provided by the United Kingdom
Guarantor, in its sole discretion, pursuant to the powers vested in the
United Kingdom Guarantor under applicable law.






	4.	 	Indemnification Procedure






	 	1.	 	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




5









 












	 	 	 	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.
	 
	 	2.	 	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 shall not in any way be affected or impaired thereby and shall
remain enforceable to the fullest extent permitted by law.
	 
	6.	 	Governing law
	 
	 	 	This Deed Poll shall be governed by and its provisions construed in accordance with English
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.	 	Termination
	 
	 	 	This Deed Poll shall remain in effect in favour and for the benefit of each Indemnitee
until the expiration of 12 months after the date that is the earlier to occur of:




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	 	1.	 	the relevant Indemnitee ceasing to serve as a director of the relevant United
Kingdom Guarantor; and
	 
	 	2.	 	the date on which all obligations of a United Kingdom Guarantor of which that
Indemnitee is a director in respect of the Bank Debt, the Senior Secured Notes, the
Unsecured Notes, the 2007 Notes or the relevant intercreditor arrangements are
released or terminated.




7









 











     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




	 	 	 	 	 
	 	 	 
	 	                      /s/ Graeme Hart
 	 
	 	Graeme Hart 	 
	 	Director 	 



	 	 	 	 	 
	 	/s/ [ILLEGIBLE]
 	 
	 	Signature of witness 	 
	 	 	 
	 	Lawyer
 	 
	 	Occupation 	 
	 	 	 
	 	Sydney
 	 
	 	City of Residence 	 
	 	 	 



8









 






	 	 	 	 	 



Schedule




Part A



United Kingdom Guarantor




	•	 	Closure Systems International (UK) Limited
	 
	•	 	Reynolds Consumer Products (UK) Limited
	 
	•	 	Reynolds Subco (UK) Limited (formerly BACO Consumer Products Limited)





Part B




List of Indemnitees




	•	 	Gregory Alan Cole
	 
	•	 	Susan Foster
	 
	•	 	Helen Dorothy Golding
	 
	•	 	Michael Eugene Graham
	 
	•	 	Victor Lance Mitchell
	 
	•	 	Francisco Javier Hernandez-Muñoz
	 
	•	 	Gary A. Thomas






9