exv10w64






EXHIBIT 10.64




 









Letter of Indemnification




Dated 13 September 2010




Reynolds Group Holdings Limited




for the benefit and in favour of




the Indemnitees defined in this Letter of Indemnification



(Germany- Closures)



 












 









 








Contents




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






	 	 	 	 	 
	Schedule	 	 	 	 
	 
	 	 	 	 
	1. Part A: German Subsidiary
	 	 	9	 
	 
	 	 	 	 
	2. Part B: List of Indemnitees
	 	 	9	 











 









 








THIS LETTER OF INDEMNIFICATION is made on 13 September, 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.	 	As part of the Reynolds group of companies (the “Reynolds Group”), each German
Subsidiary (as defined below) is a guarantor and/or a security provider (as relevant) in
respect of the Reynolds Group’s existing financing arrangements (the “Existing Financing
Arrangements”), including, without limitation, by:






	 	1.	 	providing a guarantee and/or security (as applicable) with respect to the
senior secured credit agreement dated as of November 5, 2009, between, among others,
RGHL, the borrowers listed therein and Credit Suisse AG, as amended by Amendment No.
1, dated as of January 21, 2010 and as further amended by an incremental amendment and
assumption agreement dated as of May 4, 2010 (as further amended, extended, restated
or otherwise modified the “Senior Secured Credit Facilities”);
	 
	 	2.	 	providing a guarantee and/or security (as applicable) with respect to the
7.75% senior secured notes due 2016 issued by members of the Reynolds Group in
aggregate principal amounts of US$1,125,000,000 and €450,000,000 pursuant to an
indenture dated November 5, 2009 (the “2009 Notes”);
	 
	 	3.	 	providing a guarantee with respect to certain notes issued by members of the
Reynolds Group, including (i) 8% senior notes due 2016 issued in an aggregate
principal amount of €480,000,000 pursuant to an indenture dated June 29, 2007, (ii)
9.5% senior subordinated notes due 2017 issued in an aggregate principal amount of
€420,000,000 pursuant to an indenture dated June 29, 2007, and (iii) 8.5% senior notes
due 2018 issued in an aggregate principal amount of US$1,000,000,000 pursuant to an
indenture dated May 4, 2010; and
	 
	 	4.	 	being party to the intercreditor arrangements in respect of the guarantees,
indebtedness and security described above (the “Intercreditor Arrangements”).




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	B.	 	It is currently intended that RGHL will indirectly and/or directly acquire the Pactiv group
of companies (the “Pactiv Group”) (the “Acquisition”).






	C.	 	In order to fund the Acquisition and the associated costs and transactions required to effect
the Acquisition, certain members of the Reynolds Group intend to incur additional
indebtedness. In connection with such incurrence of indebtedness, it is intended that the
Existing Financing Arrangements be supplemented and/or amended. Each German Subsidiary (as
defined below) may, among other things, be required to do some or all of the following:






	 	1.	 	enter into a new indenture in respect of the issue of new unsecured notes by
indirect subsidiaries of RGHL (the “New Unsecured Notes”), including the
provision of related guarantees in respect of the New Unsecured Notes;
	 
	 	2.	 	enter into a new indenture in respect of the issue of new senior secured
notes by indirect subsidiaries of RGHL (the “New Secured Notes”), including
the provision of related guarantees and/or security (as applicable) in respect of the
New Secured Notes;
	 
	 	3.	 	enter into one or more registration rights agreements or joinders thereof
and/or one or more purchase agreements or joinders thereof relating to the New
Unsecured Notes and the New Secured Notes;
	 
	 	4.	 	publish offering documents in respect of the New Secured Notes and the New
Unsecured Notes, together with entering into agreements relating to both the
underwriting of those notes by the initial note purchasers and the future registration
of those notes (and consequent tender offer) with the US Securities Exchange
Commission;
	 
	 	5.	 	enter into one or more amendment agreements and/or amendment and restatement
agreements which will, among other things, increase the available commitments under
the Senior Secured Credit Facilities and make additional amendments to facilitate the
Acquisition (the “Additional Bank Debt”);
	 
	 	6.	 	provide certain affirmation, re-affirmations and/or confirmations that its
guarantees currently in place in respect of the Senior Secured Credit Facilities and
the 2009 Notes continue in full force and effect and, in the case of the Senior
Secured Credit Facilities, extend to the Additional Bank Debt;
	 
	 	7.	 	provide any amendment, restatement, affirmation, re-affirmation, supplement,
extension, confirmation or release and retake of security, or grant of new or
additional security (which may be second ranking) in respect of collateral under the
applicable agreements, instruments or other documents creating security interests in
respect of the Senior




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	 	 	 	Secured Credit Facilities and the 2009 Notes (the “Security Documents”) in
order to provide that such Security Documents (i) secure obligations with respect
to the New Secured Notes and the Additional Bank Debt on a pari passu basis with
the Senior Secured Credit Facilities and the 2009 Notes to the extent possible and
(ii) continue to secure obligations in respect of the 2009 Notes; and
	 
	 	8.	 	enter into such amendments, supplements, joinders or other documents in
connection with the Intercreditor Arrangements to the extent required as may be
necessary to give effect to the proposed new structure,






	 	 	(together, the “Financing Transactions”).






	 	 	In addition, certain of the German Subsidiaries may be required to take certain steps as
may be necessary or desirable to effect corporate restructuring(s) and other steps
necessary or desirable to implement the Acquisition and may also participate in and take
steps in connection with the acquisition of certain of the Pactiv Group entities, and
associated steps to fund such acquisitions, by members of the Reynolds Group upon or
following closing of the Acquisition, including, without limitation, by way of entry into
of any acquisition agreement(s), loan agreements, capital increases and/or any other
documents (the “Acquisition and Structuring Transactions”).






	 	 	(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.



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.




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	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
	 
	 	(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.




5









 












	4.	 	Indemnification Procedure






	 	4.1	 	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 4.2, RGHL shall make such indemnification payment
within 30 business days of receipt of such invoices and supporting information.
	 
	 	4.2	 	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.
	 
	 	4.3	 	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.




6









 












	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:






	 	(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.




7









 










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




	 	 	 	 	 
	 	Reynolds Group Holdings Limited

 	 
	 	/s/ Gregory Cole
 	 
	 	Name:  	Gregory Cole 	 
	 	Position: Director 	 
	 








8









 








Schedule




Part A



German Subsidiary




	•	 	Closure Systems International Holdings (Germany) GmbH






	•	 	Closure Systems International Deutschland GmbH





Part B




List of Indemnitees




	•	 	Wolf-Friedrich Bähre






	•	 	Gregory Alan Cole






	•	 	Helen Dorothy Golding






	•	 	Siegfried Landskrone






	•	 	Victor Lance Mitchell






	•	 	Robert Eugene Smith