exv10w46






EXHIBIT 10.46




 


Indemnification Agreement




Dated 25 August 2010



Reynolds Group Holdings Limited



for the benefit and in favour of



the Indemnitees defined in agreement



(Netherlands)



 




 









 





	 	 	 	 	 

	1. Definitions
	 	 	4	 
	 
	 	 	 	 
	2. Indemnification
	 	 	4	 
	 
	 	 	 	 
	3. Limitations on Indemnification
	 	 	4	 
	 
	 	 	 	 
	4. Indemnification Procedure
	 	 	5	 
	 
	 	 	 	 
	5. Severability
	 	 	6	 
	 
	 	 	 	 
	6. Governing law
	 	 	6	 
	 
	 	 	 	 
	7. Amendments
	 	 	6	 
	 
	 	 	 	 
	8. Termination
	 	 	6	 






 









 





THIS Agreement is made on 25 August 2010




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.	 	It is anticipated that one or more entities within the Reynolds group of companies
(comprising of the Closure Systems International group of companies, the SIG group of
companies, the Reynolds Consumer Products group of companies and the Evergreen group of
companies) will indirectly acquire the Reynolds Packaging group of companies (the
“Packaging Group”), from Reynolds Packaging (NZ) Limited (the
“Acquisition”).
	 
	 	B.	 	The Acquisition will be documented by a Sale and Purchase Agreement (“SPA”)
by and among Beverage Packaging Holdings (Luxembourg) III S.à r.l., as parent buyer,
Reynolds Group Holdings Inc., as US subsidiary buyer, Closure Systems International B.V.,
as an international subsidiary buyer, and Reynolds Packaging (NZ) Limited, as seller,
together with certain related ancillary documents (the SPA, together with such related
ancillary agreements, being the “Acquisition Documents”).
	 
	 	C.	 	As a result of the Acquisition, certain members of the Packaging Group (including
each Netherlands Guarantor) will be required to accede to certain existing financing
arrangements of the Reynolds Group, including by the giving of guarantees and/or provision
of security. In the case of each Netherlands Guarantor this is anticipated to be by way
of:






	 	1.	 	a guarantee in respect of the senior secured notes co-issued by Reynolds
Group Issuer LLC, Reynolds Group Issuer Inc. and Reynolds Group Issuer (Luxembourg)
S.A. 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;
	 
	 	2.	 	the accession to the registration rights agreement in respect of the 2009
Notes dated November 5, 2009;
	 
	 	3.	 	a guarantee in respect of the senior unsecured notes co-issued by Reynolds
Group Issuer LLC, Reynolds Group Issuer Inc. and Reynolds Group Issuer (Luxembourg)
S.A. in an amount of US$1,000,000,000




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	 	 	 	due 2018 (the “2010 Unsecured Notes”) by accession to the indenture dated
May 4, 2010 under which the 2010 Unsecured Notes were issued;
	 
	 	4.	 	the accession to registration rights agreement in respect of the 2010
Unsecured Notes dated May 4, 2010;
	 
	 	5.	 	a guarantee in respect of a US$2,705,000,000 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 amended by
amendment no. 1 and joinder agreement dated January 21, 2010 (“Amendment No. 1 and
Joinder Agreement”) and by amendment no. 2 and incremental term loan assumption
agreement dated May 4, 2010 (the “Senior Secured Credit Facilities”);
	 
	 	6.	 	the 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 amended by Amendment No. 1 and
Joinder Agreement;
	 
	 	7.	 	the 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;
	 
	 	8.	 	the 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; and
	 
	 	9.	 	the 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,




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	 	 	(collectively, the “Transactions”).






	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.



THIS AGREEMENT WITNESSES as follows:





	1.	 	Definitions
	 
	 	 	“Indemnitee” means each person listed in Part B of the Schedule to this Agreement;
and
	 
	 	 	“Netherlands Guarantors” means the companies 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 Netherlands Guarantors 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 Acquisition, the Acquisition Documents,
or 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 bad faith or
wilful misconduct of the Indemnitee; or
	 
	 	(c)	 	to the extent that payment is actually made; or
	 
	 	(d)	 	to the extent that payment has or will be made to the relevant Indemnitee by
the Netherlands Guarantors or any affiliate of RGHL otherwise than pursuant to this
Agreement; or




4









 












	 	(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 relevant Netherlands Guarantors; or
	 
	 	(iii)	 	such indemnification is provided by the Netherlands
Guarantors, in its sole discretion, pursuant to the powers vested in the
Netherlands Guarantors 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 therefore,
together with such invoices or other supporting information as may be reasonably
requested by RGHL and reasonably available to the relevant Indemnitee. RGHL shall
make such indemnification payment within 15 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;
	 
	 	(c)	 	Pending the procedures set out in paragraph 4 (a) and 4 (b) of the Agreement
the relevant Indemnitee is entitled to immediate relief and assistance in any way
possible from RGHL for as far as direct actions against the relevant Indemnitee are
taken in connection with any proceeding resulting from or relating to decisions the
Indemnitee made or any actions the Indemnitee took on behalf of a Netherlands
Guarantors in his or her capacity as a director of that company on written instruction
from a direct or indirect shareholder of the relevant Netherlands Guarantors in
connection with any transactions or the approval or execution of any resolutions or
documents in relation to the Transactions. In case the procedures set out in paragraph
4 (a) and 4 (b) of the Agreement lead to the conclusion that the relevant Indemnitee
can not exercise any rights under the Agreement, the




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	 	 	 	relevant Indemnitee shall
reimburse any and all costs made by RGHL in relation thereto.






	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
Netherlands 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 of the relevant
Netherlands Guarantors;
	 
	 	(b)	 	the date on which all obligations of the relevant Netherlands Guarantor of
which that Indemnitee is a director in respect of the Senior Secured Facilities
Agreement, the 2009 Notes, the 2010 Notes, the 2007 Senior Notes, the 2007 Senior
Subordinated Notes or the relevant intercreditor agreement are expired, terminated or
released; and
	 
	 	(c)	 	the date on which all obligations of the relevant Netherlands Guarantor of
which that Indemnitee is a director in respect of the Acquisition Agreements are
expired, terminated or released.




6









 










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 Cole
 	 
	 	Name:  	Gregory Cole 	 
	 	Director 	 
	 



	 	 	 	 	 
	 	 
	
/s/ [ILLEGIBLE]	 
	Signature of witness 	 
	 
	
Secretary	 
	Occupation 	 
	 
	
Auckland	 
	City of Residence 	 
	 	 



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Schedule




Part A



Netherlands Guarantor




	•	 	Closure Systems International B.V.
	 
	•	 	Reynolds Packaging International B.V.





Part B



List of Indemnitees





	•	 	Gregory Alan Cole
	 
	•	 	Bryce McCheyne Murray
	 
	•	 	Eleonora Jongsma
	 
	•	 	Orangefield Trust (Netherlands) B.V.