exv10w49






EXHIBIT
10.49






 

 







Agreement of Indemnification


Dated 25 August 2010


Reynolds Group Holdings Limited


for the benefit and in favour of


the Indemnitees defined in this Agreement


(United States)



 

 






 









 





Contents




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






 









 





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 U.S.
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 U.S. 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;




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	 	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 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




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	 	 	 	trustee, principal paying agent and transfer agent, BNY Fund Services (Ireland)
Limited and Credit Suisse AG,





(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
	 
	 	 	“U.S. Guarantor” means each 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. Guarantor 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 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




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	 	 	 	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
the U.S. Guarantor 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 relevant U.S. Guarantor; or
	 
	 	(iii)	 	such indemnification is provided by the U.S. Guarantor, in
its sole discretion, pursuant to the powers vested in the U.S. Guarantor
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 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.





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



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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 of the relevant U.S.
Guarantor;
	 
	 	(b)	 	the date on which all obligations of the relevant U.S. 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.




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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 Cole
	 

	 	 
	 

	 	Name: Gregory Cole

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






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Schedule




Part A



U.S. Guarantor




	•	 	Reynolds Group Holdings Inc.
	 
	•	 	Reynolds Packaging Inc.
	 
	•	 	Reynolds Flexible Packaging
Inc.
	 
	•	 	Ultra Pac, Inc.
	 
	•	 	Reynolds Food Packaging LLC
	 
	•	 	Reynolds Packaging Kama Inc.
	 
	•	 	Reynolds Packaging LLC.




 









 











Part B




List of Indemnitees





	•	 	Gregory Alan Cole
	 
	•	 	Helen Dorothy Golding
	 
	•	 	Allen Philip Hugli
	 
	•	 	Thomas James Degnan
	 
	•	 	Michael Eugene Graham
	 
	•	 	Robert L. Larson
	 
	•	 	Paul Donald Thomas
	 
	•	 	Bruce P. Miller
	 
	•	 	Daniel Cochran






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