exv10w85






EXHIBIT 10.85







 





Deed Poll of Indemnification




Dated 14 January 2011




Reynolds Group Holdings Limited




for the benefit and in favour of




the Indemnitees defined in this Deed Poll of Indemnification



(United Kingdom — Closures, Reynolds Consumer Products, Reynolds Foodservice and Pactiv)






 













 









 








Contents




	 	 	 	 	 
	Clause	 	Page	 
	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	 






	 	 	 	 	 
	Schedule	 	 	 	 
	 
	 	 	 	 
	1. Part A: United Kingdom Guarantor
	 	 	8	 
	 
	 	 	 	 
	2. Part B: List of Indemnitees
	 	 	8	 











 









 







THIS DEED POLL OF INDEMNIFICATION is made on 14 January 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.	 	As part of the Reynolds group of companies (the “Reynolds Group”), each United
Kingdom Guarantor (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:






	 	(a)	 	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 (i) Amendment
No. 1, dated as of January 21, 2010, (ii) an amendment and assumption agreement dated
as of May 4, 2010, (iii) an amendment and assumption agreement dated as of September
30, 2010 and (iv) each guarantor joinder entered into from time to time (the
“Senior Secured Credit Facilities”);
	 
	 	(b)	 	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”); and
	 
	 	(c)	 	providing a guarantee and security with respect to the 7.125% senior secured
notes due 2019 issued by members of the Reynolds Group in aggregate principal amounts
of US$1,500,000,000 pursuant to an indenture dated October 15, 2010 (the “2010
Secured Notes”);




 









 












	 	 	(the Senior Secured Credit Facilities, the 2009 Notes and the 2010 Secured Notes being
together, the “Existing Secured Indebtedness”),






	 	(d)	 	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, (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 (iv) 9.0% senior notes due 2019 issued in an aggregate
principal amount of US$1,500,000,000 pursuant to an indenture dated October 15, 2010
((i), (ii), (iii) and (iv) are together, the “Existing Notes”); and
	 
	 	(e)	 	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 additional debt will be incurred in order to, without
limitation, (i) repay some or all of the debt incurred pursuant to the Senior Secured Credit
Facilities and/or (ii) increase the amount of cash available to certain members of the
Reynolds Group including, without limitation, for general corporate purposes, to pay fees
and/or expenses in connection with the Transactions (as defined below) and/or to fund future
acquisitions.






	C.	 	In connection with such incurrence of indebtedness, it is intended that the Existing
Financing Arrangements be supplemented and/or amended. Each United Kingdom Guarantor (as
defined below) may, among other things, be required to do some or all of the following:






	 	(a)	 	provide a guarantee in respect of the issue of new senior unsecured notes by
indirect subsidiaries of RGHL (the “New Unsecured Notes”), and enter into a
purchase agreement and registration rights agreement relating to the New Unsecured
Notes;
	 
	 	(b)	 	provide a guarantee and security in respect of the issue of new senior
secured notes by indirect subsidiaries of RGHL (the “New Secured Notes”) which
will be secured on a pari passu basis with the security granted by each United Kingdom
Guarantor in respect of the Existing Secured Indebtedness, and enter into a purchase
agreement and registration rights agreement relating to the New Secured Notes;




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	 	(c)	 	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;
	 
	 	(d)	 	in addition to (whether contemporaneously or otherwise), or instead of, the
issue of the New Secured Notes and/or the New Unsecured Notes, enter into an amendment
and/or restatement agreement relating to the Senior Secured Credit Facilities to (i)
allow for the incurrence of additional indebtedness (the “Additional Bank
Debt”) that will be incurred to repay some or all of the existing tranches of debt
under the Senior Secured Credit Facilities, or into which some or all of the existing
tranches of debt under the Senior Secured Credit Facilities will be converted or
rolled over, (ii) reflect any repayment of debt made from the proceeds of the
Additional Bank Debt, the New Unsecured Notes and/or the New Secured Notes and/or
(iii) any amendments that are agreed with the Lenders (as defined therein) to update
certain of the commercial terms, including, without limitation, relating to pricing,
maturity and commercial and financial covenants (the “Amendment Agreement”);
	 
	 	(e)	 	provide certain affirmations, re-affirmations and/or confirmations that its
guarantees currently in place in respect of the Existing Secured Indebtedness continue
in full force and effect notwithstanding the Transactions (as defined below) and
extend to the New Secured Notes;
	 
	 	(f)	 	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 or third ranking) in respect of collateral
under the applicable agreements, instruments or other documents creating security
interests in respect of the Existing Secured Indebtedness (the “Security
Documents”) in order to provide that such Security Documents (i) secure
obligations with respect to the New Secured Notes on a pari passu basis with the
Existing Secured Indebtedness to the extent possible and (ii) continue to secure
obligations in respect of the Existing Secured Indebtedness; and/or
	 
	 	(g)	 	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;





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	 	together, the “Transactions”. 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 deed poll (this “Deed
Poll”) in favour and for the benefit of each Indemnitee.



THIS DEED POLL WITNESSES as follows:





	1.	 	Definitions






	 	 	“Indemnitee” means each person listed in Part B of the Schedule to this Deed Poll;
and






	 	 	“United Kingdom Guarantor” means each company listed in Part A of the Schedule to
this Deed Poll.






	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) 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 United
Kingdom 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 Transactions.






	3.	 	Limitations on Indemnification






	 	 	Notwithstanding any other provision of this Deed Poll, an Indemnitee shall not be entitled
to indemnification under this Deed Poll:






	 	(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




4









 






	 	 	 	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 United Kingdom Guarantor or any affiliate of RGHL otherwise than pursuant to this
Deed Poll; 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 United Kingdom Guarantor; or
	 
	 	(iii)	 	such indemnification is provided by the relevant United
Kingdom Guarantor, in its sole discretion, pursuant to the powers vested in
the United Kingdom 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 Deed Poll. To obtain indemnification payments or advances under
this Deed Poll, 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.
	 
	 	(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









 












	5.	 	Severability






	 	 	If any provision or provisions of this Deed Poll shall be held to be invalid, illegal or
unenforceable for any reason, the validity, legality and enforceability of the remaining
provisions of this Deed Poll 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 Deed Poll shall be governed by and its provisions construed in accordance with English
law.






	7.	 	Amendments






	 	 	No amendment or modification of this Deed Poll shall be effective unless it is approved in
writing by each Indemnitee having the benefit of this Deed Poll.






	8.	 	Termination






	 	 	This Deed Poll 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:






	 	(i)	 	the relevant Indemnitee ceasing to serve as a director of
the relevant United Kingdom Guarantor; and
	 
	 	(ii)	 	the date on which all obligations of the relevant United
Kingdom Guarantor of which that Indemnitee is a director in respect of the
Transaction Documents are expired, terminated or released.




6









 










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




	 	 	 	 	 
	 	Reynolds Group Holdings Limited

 	 
	 	/s/ Gregory Cole
 	 
	 	Name:  	Gregory Cole 	 
	 	 	 
	 



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








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Schedule




Part A



United Kingdom Guarantor




	•	 	IVEX Holdings, Ltd.






	•	 	Kama Europe, Limited






	•	 	Closure Systems International (UK) Limited






	•	 	Reynolds Consumer Products (UK) Limited






	•	 	Reynolds Subco (UK) Limited






	•	 	The Baldwin Group Limited






	•	 	J. & W. Baldwin (Holdings) Limited






	•	 	Omni-Pac U.K. Limited




8









 











Part B




List of Indemnitees




	•	 	Stephen John Buttery






	•	 	Susan Foster






	•	 	Paul Donald Thomas






	•	 	Gregory Alan Cole






	•	 	Helen Dorothy Golding






	•	 	Michael Eugene Graham






	•	 	Victor Lance Mitchell






	•	 	Francisco Javier Hernandez-Muñoz






	•	 	Gary Thomas






	•	 	Allen Philip Hugli




9