exv10w65








EXHIBIT 10.65




 











Agreement of Indemnification




Dated 13 September 2010




Reynolds Group Holdings Limited




for the benefit and in favour of




the Indemnitees defined in this Agreement of Indemnification



(United States — Closures, Reynolds Consumer Products and Reynolds Foodservice)



 

















 









 








Contents




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






	 	 	 	 	 
	Schedule	 	 	 	 
	 
	 	 	 	 
	1. Part A: U.S. Obligor
	 	 	8	 
	 
	 	 	 	 
	2. Part B: List of Indemnitees
	 	 	9	 











 









 








THIS AGREEMENT 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 U.S. Obligor
(as defined below) is a guarantor, security provider, borrower and/or issuer (as relevant) in
respect of the Reynolds Group’s existing financing arrangements (the “Existing Financing
Arrangements”), including, without limitation, by:






	 	1.	 	borrowing under and/or 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”).






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




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	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 U.S. Obligor (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 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




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	 	 	 	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 U.S. Obligors 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 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. Obligor” 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




4









 






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






	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 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. 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




5









 






	 	 	 	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 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.
Obligor; and
	 
	 	(b)	 	the date on which all obligations of the relevant 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 Cole
 	 
	 	Name:  	Gregory Cole 	 
	 	 	 
	 



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








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Schedule




Part A



U.S. Obligor




	•	 	Evergreen Packaging Inc.





	•	 	Evergreen Packaging USA Inc.





	•	 	Evergreen Packaging International (US) Inc.





	•	 	Blue Ridge Holding Corp





	•	 	Blue Ridge Paper Products Inc.





	•	 	BRPP, LLC





Part B




List of Indemnitees




	•	 	Ricardo Felipe Alvergue






	•	 	Malcolm Peter Bundey






	•	 	Thomas James Degnan






	•	 	Helen Dorothy Golding






	•	 	Allen Philip Hugli






	•	 	Joseph Benjamin Hanks






	•	 	Cindi Lefari