exv10w89









Exhibit 10.89




 


Letter of Indemnification




Dated March 1, 2011




Reynolds Group Holdings Limited




for the benefit and in favour of




the Indemnitees defined in this Letter of Indemnification



(Pactiv — Germany)




 


 









 





Contents




	 	 	 	 	 
	Clause
	 	Page	 
	1. Definitions
	 	 	7	 
	2. Indemnification
	 	 	7	 
	3. Limitations on Indemnification
	 	 	7	 
	4. Indemnification Procedure
	 	 	8	 
	5. Severability
	 	 	9	 
	6. Governing law
	 	 	9	 
	7. Amendments
	 	 	9	 
	8. Termination
	 	 	9	 
	 
	 	 	 	 
	Schedule
	 	 	 	 
	 
	 	 	 	 
	1. Part A: German Subsidiary
	 	 	12	 
	2. Part B: List of Indemnitees
	 	 	12	 






 









 





THIS Letter of Indemnification is made on March 1, 2011




BY:



Reynolds Group Holdings 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 (“RGHL”);



IN FAVOUR AND FOR THE BENEFIT OF:



Each Indemnitee (as defined below).




BACKGROUND





	A.	 	On November 16, 2010 the Reynolds group of companies (the “Reyno1ds
Group”) acquired the Pactiv group of companies (the Pactiv Group”) through the
merger of Reynolds Acquisition Corporation (an indirect subsidiary of
RGHL) and Pactiv Corporation, with Pactiv Corporation as the surviving
entity (the “Acquisition”).
	 
	B.	 	Certain members of the Pactiv Group, including each German Subsidiary (as defined below), will,
among other things, be required to guarantee and/or
provide security (as relevant) for the existing financing arrangements of the Reynolds Group,
including, without limitation, the financing arrangements put in place in order to fund the
Acquisition, (the “Existing Financing
Arrangements”).
	 
	C.	 	Each German Subsidiary will be required to fully participate in the Existing Financing
Arrangements, including, without limitation, by the following:






	 	1.	 	provision of a guarantee in respect of the senior secured notes co-issued
in an amount of US$1,125 million due 2016 and €450 million due 2016 (the “2009 Notes”) by
accession to the indenture dated
November 5, 2009 under which the 2009 Notes were issued (as
amended, extended, restated or otherwise modified, the “2009
Indenture”);




2









 






	 	2.	 	accession to the registration rights agreement in respect of the 2009
Notes dated November 5, 2009 (as amended, extended, restated or
otherwise modified, the “2009 Registration Rights
Agreement”);
	 
	 	3.	 	provision of a guarantee in respect of the senior unsecured
notes co-issued
in an amount of US$1,000,000,000 due 2018 (the “May 2010 Unsecured Notes”) by accession to
the indenture dated May 4, 2010
under which the May 2010 Unsecured Notes were issued (as amended, extended, restated or otherwise
modified, the “May 2010 Unsecured Notes
Indenture”);
	 
	 	4.	 	accession to registration rights agreement in respect of the May 2010 Unsecured Notes dated May
4, 2010 (as amended, extended, restated or otherwise modified, the
“May 2010 Unsecured Notes
Registration Rights Agreement”);
	 
	 	5.	 	provision of a guarantee in respect of the senior secured
notes co-issued
in an amount of $1,500,000,000 due 2019 (the “October 2010
Secured Notes”) by accession to the indenture dated October 15, 2010
under which the October 2010 Secured Notes were issued (as
amended, extended, restated or otherwise modified, the “October 2010
Secured Notes Indenture”);
	 
	 	6.	 	accession to the registration rights agreement in respect of the October
2010 Secured Notes dated October 15, 2010 (as amended, extended, restated or otherwise modified,
the “October 2010 Secured Notes
Registration Rights Agreement”);
	 
	 	7.	 	provision of a guarantee in respect of the senior unsecured
notes co-issued
in an amount of $1,500,000,000 due 2019 (the “October 2010
Unsecured Notes”) by accession to the indenture dated October 15,
2010 under which the October 2010 Unsecured Notes were issued (as
amended, extended, restated or otherwise modified, the “October 2010
Unsecured Notes Indenture”)
	 
	 	8.	 	accession to the registration rights agreement in respect of the October
2010 Unsecured Notes dated October 15, 2010 (as amended, extended, restated or otherwise modified,
the “October 2010 Unsecured Notes
Registration Rights Agreement”);




3









 








	 	9.	 	provision of a guarantee in respect of the senior secured
notes co-issued
in an amount of $1,000,000,000 due 2021 (the “February 2011 Secured
Notes”) by accession to
the indenture dated February 1, 2011 under which the February 2011 Secured Notes were issued (as
amended, extended, restated or otherwise modified, the
“February 2011 Secured Notes Indenture”);
	 
	 	10.	 	accession to the registration rights agreement in respect of the February
2011 Secured Notes dated February 1, 2011 (as amended, extended,
restated or otherwise modified, the “February 2011
Secured Notes Registration Rights Agreement”);
	 
	 	11.	 	provision of a guarantee in respect of the senior unsecured
notes co-issued
in an amount of $1,000,000,000 due 2021 (the
“February 2011 Unsecured Notes”) by accession to the indenture dated February 1,
2011 under which the February 2011 Unsecured Notes were issued (as
amended, extended, restated or otherwise modified, the
“February 2011 Unsecured Notes Indenture”)
	 
	 	12.	 	accession to the registration rights agreement in respect of the February
2011 Unsecured Notes dated February 1, 2011 (as amended, extended, restated or otherwise modified,
the “February 2011 Unsecured Notes Registration Rights
Agreement”);
	 
	 	13.	 	provision of a guarantee in respect of a US$2,445,000,000 and
€330,000,000 multi-currency term and revolving senior secured credit agreement dated November 5,
2009, between, among others, RGHL, the borrowers listed therein and Credit Suisse AG (as
subsequently
amended, extended, restated and/or otherwise modified, the
“Senior Secured Credit Facilities”);
	 
	 	14.	 	accession to the first lien intercreditor agreement dated November 5,
2009, between, among others, The Bank of New York Mellon as the
collateral agent, Credit Suisse AG,
and the grantors from time to time party thereto and the representatives from time to time party
thereto (as subsequently amended extended, restated and/or otherwise
modified, the “FLICA”);
	 
	 	15.	 	accession to the intercreditor agreement dated May 11,
2007, as amended and restated by an amendment and restatement agreement
date November 5, 2009 between, among others, RGHL as parent,
Credit Suisse AG, Cayman Islands Branch as administrative agent, The




4









 






	 	 	 	Bank of New York Mellon as collateral agent, senior secured notes
trustee and high yield noteholders trustee (and as further amended,
extended, restated and/or otherwise modified, the “2007 ICA”);
	 
	 	16.	 	provision of a subordinated guarantee in respect of the senior
indenture, dated June 29, 2007, in respect of the 8% Senior Notes
(“2007 Senior Notes”) due 2016, initially issued in the aggregate
principal amount of €480,000,000, between, among others, Beverage Packaging Holdings (Luxembourg)
II S.A. (“BPII”), the Senior Note Guarantors (as defined therein). The Bank of New York Mellon as
trustee, principal paying agent and transfer agent, BNY Fund Services (Ireland) Limited and Credit
Suisse AG (as subsequently amended,
extended, restated or otherwise modified, the “2007 Senior Notes Indenture”);
	 
	 	17.	 	provision of a subordinated guarantee in respect of the senior
subordinated indenture, dated June 29, 2007, in respect of the
91⁄2%
Senior Subordinated Notes due 2017 (“2007 Senior Subordinated
Notes”), initially issued in the aggregate principal amount of
€420,000,000, between, among others, BPII, the Senior Subordinated Note Guarantors (as defined
therein), The Bank of New York Mellon as trustee, principal paying
agent and transfer agent, BNY
Fund Services (Ireland) Limited and Credit Suisse AG (as subsequently amended, extended, restated or
otherwise modified, the “2007 Senior Subordinated Notes
Indenture”) (the 2007 Senior Notes and the 2007 Senior
Subordinated Notes are, together, the “2007 Notes”); and
	 
	 	18.	 	provision of security over certain assets of the German Subsidiaries to secure the obligations
in respect of the Senior Secured Credit Facilities, the 2009 Notes, the October 2010 Secured Notes
and the February
2011 Secured Notes,




(collectively,
the “Financing Transactions”).



In addition to the Financing Transactions, one or more of the German Subsidiaries
may take certain actions or steps as may be necessary or desirable to implement
corporate restructurings, including, without limitation, completing, signing or
complying with documentation to fund or effect the transfer of one or more of the
German Subsidiaries within or between the Pactiv Group and Reynolds
Group (the “Acquisition and Structuring Transactions”).





5









 







The Financing Transactions together with the Acquisition and Structuring
Transactions are, collectively, the “Transactions”, and the documents relating to the
Transactions are, collectively, the “Transaction Documents”).





	D.	 	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 Letter of
Indemnification in favour and for the benefit of each Indemnitee.





6









 







IT IS
AGREED as follows:





	1.	 	Definitions
	 
	 	 	“Director” means with respect to companies
incorporated under German law any managing director
(Geschäftsführer).
	 
	 	 	“German Subsidiary” means each company listed in Part A of the Schedule to this Letter
of Indemnification.
	 
	 	 	“Indemnitee” means each person listed in Part B of the Schedule to this Letter of Indemnification.
	 
	2.	 	 Indemnification
	 
	 	 	RGHL shall — upon first demand (auf erstes Anfordern) — indemnify
(freistellen) 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 German Subsidiary in his or her
capacity as a Director of that company in connection with any transactions or the approval or
execution of any resolutions or documents in relation to the Transactions
(“Indemnified Liabilities”).
	 
	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:






	 	(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 gross
negligence, bad faith or wilful misconduct of the Indemnitee; or




7









 






	 	(c)	 	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
	 
	 	(d)	 	to the extent that payment has or will be made to the relevant
Indemnitee by a German Subsidiary or any affiliate of RGHL
otherwise than pursuant to this Letter of Indemnification; or
	 
	 	(e)	 	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 a
German Subsidiary; or
	 
	 	(iii)	 	such indemnification is provided by the relevant German
Subsidiary, in its sole discretion, pursuant to the powers vested
in a German Subsidiary under applicable law.






	4.	 	Indemnification Procedure






	 	(a)	 	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 Letter of
Indemnification. To obtain indemnification payments or advances
under this Letter of Indemnification, 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. Subject to
clause 4(b) below, RGHL 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 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




8









 






	 	 	 	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.
	 
	 	(c)	 	Each Indemnitee shall be obliged as soon as practicable to claim his
rights under any applicable insurance policy and shall assign to RGHL any related payments claims
under such insurance policy. However
this clause does not affect the Indemnitee’s right to indemnification
under clause 2 above.






	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
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 Letter of Indemnification shall be governed by and its provisions
construed in accordance with German law.
	 
	 	 	Whenever an English term of this Letter is followed by a German term in
parenthesis, the German term shall prevail for the purpose of construction 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.
	 
	8.	 	Termination
	 
	 	 	This Letter of Indemnification 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 later to
occur of:




9









 












	 	(a)	 	the relevant Indemnitee ceasing to serve as a Director of the
relevant German Subsidiary;
and
	 
	 	(b)	 	the date on which all obligations of the relevant German Subsidiary of which that Indemnitee is
a Director in respect of the Transaction
Documents are expired, terminated or released.




10









 










This Letter of Indemnification has been executed as of the date stated at the beginning
hereof.




	 	 	 	 	 
	Reynolds Group Holdings Limited

 	 
	/s/ Thomas Degnan
 	 
	By: Thomas Degnan 	 
	Position: Director

Address: 	 



11









 






	 	 	 	 	 



Schedule




Part A 



German Subsidiary




	•	 	Pactiv Hamburg Holdings GmbH
	 
	•	 	Pactiv Deutschland Holdinggesellschaft mbH
	 
	•	 	Omni-Pac Ekco GmbH Verpackungsmittel
	 
	•	 	Omni-Pac GmbH Verpackungsmittel





Part B 



List of Indemnitees




	•	 	Helen Dorothy Golding
	 
	•	 	Gregory Alan Cole
	 
	•	 	Allen Hugli