exv10w53






EXHIBIT 10.53




 





Indemnification Agreement




Dated 13 September 2010




Reynolds Group Holdings Limited




for the benefit and in favour of




the Indemnitees defined in Indemnification Agreement



(Netherlands)



 




 









 





Contents




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






 









 






THIS INDEMNIFICATION AGREEMENT 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 Netherland
Guarantor (as defined below) is a borrower, 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.	 	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”).




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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 Netherland Guarantor (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




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	 	 	 	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 Netherland Guarantors 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 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
	 
	 	 	“Netherland Guarantor” 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




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	 	 	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 Netherland
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 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 has or will be made to the relevant Indemnitee by
a Netherland Guarantor or any affiliate of RGHL otherwise than pursuant to this
Agreement; or
	 
	 	(d)	 	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 Netherland Guarantor; or
	 
	 	(iii)	 	such indemnification is provided by the relevant
Netherland Guarantor, in its sole discretion, pursuant to the powers vested
in the relevant Netherland 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. Subject to clause 4(b), 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




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	 	 	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 Netherland 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. 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 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
Netherland Guarantor; and
	 
	 	(b)	 	the date on which all obligations of the relevant Netherland Guarantor of
which that Indemnitee is a director 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



Netherland Guarantor




	•	 	Closure Systems International B.V.
	 
	•	 	Reynolds Consumer Products International B.V.
	 
	•	 	Evergreen Packaging 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.
	 
	•	 	Thomas James Degnan