exv10w73






Exhibit 10.73





 

 


Letter of Indemnification




Dated November 16, 2010



Reynolds Group Holdings Limited



for the benefit and in favour of



the Indemnitees defined in this Letter of Indemnification



(Pactiv — Germany)





 

 



 









 





Contents




	 	 	 	 	 
	Clause	 	Page
	1. Definitions

	 	 	5	 
	2. Indemnification

	 	 	5	 
	3. Limitations on Indemnification

	 	 	6	 
	4. Indemnification Procedure

	 	 	7	 
	5. Severability

	 	 	7	 
	6. Governing law

	 	 	7	 
	7. Amendments

	 	 	8	 
	8. Termination

	 	 	8	 
	 
	 	 	 	 
	Schedule
	 	 	 	 
	 
	 	 	 	 
	1. Part A: German Subsidiary

	 	 	10	 
	2. Part B: List of Indemnitees

	 	 	10	 






 









 





THIS
Letter of Indemnification is made on November 16, 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.	 	On November 16, 2010 the Reynolds group of companies (the “Reynolds Group”) acquired
the Pactiv group of companies (the “Pactiv Group”) through the merger of Reynolds
Acquisition Corporation (an indirect subsidiary of RGHL) and Pactiv Corporation, with Pactiv
Corporation as the surviving entity (the “Acquisition”).
	 
	B.	 	As part of the Acquisition, certain members of the Pactiv Group, including each German
Subsidiary (as defined below), will, among other things, be required to guarantee and/or
provide security (as relevant) for the existing financing arrangements of the Reynolds Group,
including, without limitation, the financing arrangements put in place in order to fund the
Acquisition, (the “Existing Financing Arrangements”).
	 
	C.	 	Each German Subsidiary will be required to fully participate in the Existing Financing
Arrangements, including, without limitation, by the following:






	 	1.	 	provision of a guarantee in respect of the senior secured notes
co-issued 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 (as amended, extended, restated or otherwise
modified, the “2009 Indenture”);




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	 	2.	 	accession to the registration rights agreement in respect of the 2009 Notes
dated November 5, 2009 (as amended, extended, restated or otherwise modified, the
“2009 Registration Rights Agreement”);
	 
	 	3.	 	provision of a guarantee in respect of the senior unsecured notes co-issued
in an amount of US$1,000,000,000 due 2018 (the “May 2010 Unsecured Notes”) by
accession to the indenture dated May 4, 2010 under which the May 2010 Unsecured Notes
were issued (as amended, extended, restated or otherwise modified, the “May 2010
Unsecured Notes Indenture”);
	 
	 	4.	 	accession to registration rights agreement in respect of the May 2010
Unsecured Notes dated May 4, 2010 (as amended, extended, restated or otherwise
modified, the “May 2010 Unsecured Notes Registration Rights Agreement”);
	 
	 	5.	 	provision of a guarantee in respect of the senior secured notes co-issued in
an amount of US$1,500,000,000 due 2019 (the “October 2010 Secured Notes”) by
accession to the indenture dated October 15, 2010 under which the October 2010 Secured
Notes were issued (as amended, extended, restated or otherwise modified, the
“October 2010 Secured Notes Indenture”);
	 
	 	6.	 	accession to the registration rights agreement in respect of the October 2010
Secured Notes dated October 15, 2010 (as amended, extended, restated or otherwise
modified, the “October 2010 Secured Notes Registration Rights Agreement”);
	 
	 	7.	 	provision of a guarantee in respect of the senior unsecured notes co-issued
in an amount of US$1,500,000,000 due 2019 (the “October 2010 Unsecured Notes”)
by accession to the indenture dated October 15, 2010 under which the October 2010
Unsecured Notes were issued (as amended, extended, restated or otherwise modified, the
“October 2010 Unsecured Notes Indenture”)
	 
	 	8.	 	accession to the registration rights agreement in respect of the October 2010
Unsecured Notes dated October 15, 2010 (as amended, extended, restated or otherwise
modified, the “October 2010 Unsecured Notes Registration Rights Agreement”);




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	 	9.	 	provision of a guarantee in respect of a US$4,725,000,000 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 subsequently amended, extended, restated or otherwise modified, the “Senior
Secured Credit Facilities”);
	 
	 	10.	 	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 subsequently amended extended, restated or
otherwise modified, the
“FLICA”);
	 
	 	11.	 	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 (and as further
amended, extended, restated or otherwise modified, the “2007
ICA”);
	 
	 	12.	 	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 (as subsequently amended, extended, restated or otherwise modified,
the “2007 Senior Notes Indenture”);
	 
	 	13.	 	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
trustee, principal paying agent and transfer agent, BNY Fund Services (Ireland)
Limited and Credit Suisse AG (as subsequently amended, extended, restated or otherwise
modified, the “2007 Senior




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	 	 	 	Subordinated Notes Indenture”) (the 2007 Senior Notes and the 2007 Senior
Subordinated Notes are, together, the “2007 Notes”): and
	 
	 	14.	 	provision of security over certain assets of the German Subsidiaries to
secure the obligations in respect of the Senior Secured Credit Facilities, the 2009
Notes and the October 2010 Secured Notes,




(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.
	 
	2.	 	Indemnification
	 
	 	 	RGHL shall — upon first demand (auferstes 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




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	 	 	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.




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	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 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(b) below, 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.
	 
	 	(c)	 	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.




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	 	 	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.
	 
	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.




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




Reynolds Group Holdings Limited




	 	 	 	 	 
	 	By:  	/s/
Graeme Hart
 	 
	 	 	Graeme Hart 	 
	 	 	Position: Director 	 



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Schedule




Part A 



German Subsidiary




	 	•	 	Pactiv Hamburg Holdings GmbH
	 
	 	•	 	Pactiv Deutschland Holdinggesellschaft mbH
	 
	 	•	 	Omni-Pac Ekco GmbH Verpackungsmittel
	 
	 	•	 	Omni-Pac GmbH Verpackungsmittel





Part B 




List of Indemnitees




	 	•	 	Helen Dorothy Golding
	 
	 	•	 	Gregory Alan Cole
	 
	 	•	 	Allen Philip Hugli






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