exv10w90






Exhibit 10.90




Agreement of Indemnification




 




Dated May 2, 2011




 




Reynolds Group Holdings Limited




 




for the benefit and in favour of




the Indemnitees defined in this Agreement




(Dopaco — United States)




 









 








Contents




	 	 	 	 	 	 	 
	Clause	 	Page
	 
	 	 	 	 	 	 
	1.

	 	Definitions
	 	 	6	 
	2.

	 	Indemnification
	 	 	6	 
	3.

	 	Limitations on Indemnification
	 	 	6	 
	4.

	 	Indemnification Procedure
	 	 	7	 
	5.

	 	Severability
	 	 	8	 
	6.

	 	Governing law
	 	 	8	 
	7.

	 	Amendments
	 	 	8	 
	8.

	 	Termination
	 	 	8	 
	 
	 	 	 	 	 	 
	Schedule	 	 	 	 
	 
	 	 	 	 	 	 
	1.

	 	Part A: U.S. Obligor
	 	 	10	 
	2.

	 	Part B: List of Indemnitees
	 	 	11	 






 









 





THIS
AGREEMENT OF INDEMNIFICATION is made on May 2, 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 May 2, 2011 the Reynolds group of companies (the “Reynolds Group”) acquired Dopaco,
Inc. and Dopaco Canada, Inc. (and its subsidiaries) (the “Dopaco Group”) from Cascades,
Inc. (the “Acquisition”).
	 
	B.	 	Certain members of the Dopaco Group, including the U.S. Obligor (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 (the “Existing Financing
Arrangements”).
	 
	C.	 	The U.S. Obligor 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$1,125,000,000 due 2016 and €450,000,000 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.	 	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”);




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	 	3.	 	provision of a guarantee in respect of the senior unsecured notes co-issued in an
amount of US$l,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 US$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 US$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”);
	 
	 	9.	 	provision of a guarantee in respect of the senior secured notes co-issued in an amount
of $l,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”);




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	 	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 $l,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$4,725,000,000 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 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 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 Bank of New
York Mellon as collateral agent, senior secured notes trustee and high yield noteholders
trustee (and as further amended, extended, restated 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




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	 	 	 	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 U.S. Obligors to secure the
obligations in respect of the Senior Secured Credit Facilities, the 2009 Notes and the
October 2010 Secured Notes and the February 2011 Secured Notes,




(collectively, the “Financing Transactions”).



In addition to the Financing Transactions, the U.S. Obligor may take certain actions or steps as
may be necessary or desirable in connection with the Acquisition (the “Acquisition Transaction”).



The Financing Transactions together with the Acquisition Transaction 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 an agreement (this “Agreement”) in
favour and for the benefit of each Indemnitee.





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THIS AGREEMENT WITNESSES as follows:





	1.	 	Definitions
	 
	 	 	“Indemnitee” means each person listed in Part B of the Schedule to this Agreement; and
	 
	 	 	“U.S. Obligor” means the company listed in Part A of the Schedule to this Agreement.
	 
	2.	 	Indemnification
	 
	 	 	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 U.S. Obligor in his or her capacity as a director or officer
of that 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 Agreement, an Indemnitee shall not be entitled
to indemnification under this Agreement:






	 	(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
	 
	 	(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




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	 	(d)	 	to the extent that payment has or will be made to the relevant
Indemnitee by the U.S. Obligor or any affiliate of RGHL otherwise than pursuant to
this Agreement; 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 the U.S. Obligor; or
	 
	 	(iii)	 	such indemnification is provided by the U.S. Obligor, in its sole
discretion, pursuant to the powers vested in the U.S. Obligor 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 Agreement. To obtain
indemnification payments or advances under this Agreement, an Indemnitee shall
submit to RGHL a written request therefor, 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 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.




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	5.	 	Severability
	 
	 	 	If any provision or provisions of this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the validity, legality and enforceability of the remaining
provisions of this Agreement 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 Agreement shall be governed by and its provisions construed in accordance with New York
law.
	 
	7.	 	Amendments
	 
	 	 	No amendment or modification of this Agreement shall be effective unless it is approved in
writing by each Indemnitee having the benefit of this Agreement.
	 
	8.	 	Termination
	 
	 	 	This Agreement 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:






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




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



	 	 	 

	Reynolds Group Holdings Limited
	 	 
	 
	 	 
	 

	 	/s/ Gregory Alan Cole
	 	 	 
	 
	 	 
	 

	 	Name: Gregory Alan Cole

Position: Director
	 
	 	 
	 
	 	 
	/s/ F
Ramsay
	 	 
	 	 	 
	Signature of witness
	 	 
	 
	 	 
	Secretary
	 	 
	 	 	 
	Occupation
	 	 
	 
	 	 
	Auckland
	 	 
	 	 	 
	City of Residence
	 	 






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Schedule




Part
A




U.S. Obligor





	•	 	Dopaco, Inc.




10









 











Part B




List of Indemnitees





	•	 	Gregory Alan Cole
	 
	•	 	Allen Philip Hugli
	 
	•	 	Helen Dorothy Golding
	 
	•	 	Thomas James Degnan
	 
	•	 	Any other director or officer (as relevant) of the U.S. Obligor from time to time after
consummation of the Acquisition






11