Exhibit 10.6


     

     

    Exhibit
      10.6


    BERRY
      PLASTICS CORPORATION

    BPC
      HOLDING CORPORATION

    


    THIRD
      AMENDMENT TO SECOND AMENDED AND RESTATED

    CREDIT
      AND GUARANTY AGREEMENT

    


    THIRD
      AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AND GUARANTY
      AGREEMENT
      (this
“Amendment”)
      is
      dated as of October 26, 2005 (the “Amendment
      Effective Date”),
      among
      Berry Plastics Corporation, a Delaware corporation (“Company”),
      BPC
      Holding Corporation, a Delaware corporation (“Holdings”),
      certain subsidiaries of Company as Guarantors, the Lenders party hereto, Goldman
      Sachs Credit Partners L.P. (“GSCP”)
      as
      co-syndication agent, joint lead arranger and joint bookrunner, JPMorgan Chase
      Bank, N.A. (“JPMCB”),
      as
      co-syndication agent, J.P. Morgan Securities Inc. (“JPMorgan”)
      as
      joint lead arranger and joint bookrunner, Deutsche Bank Trust Company Americas
      (together with any of its designated affiliates, “DBTCA”),
      as
      Administrative Agent, Collateral Agent, an Issuing Bank and Swing Line Lender,
      Fleet National Bank (“Fleet
      National Bank”),
      as an
      Issuing Bank and predecessor Swing Line Lender, and The Royal Bank of Scotland
      and General Electric Capital Corporation, as Co-Documentation Agents.


     

    RECITALS

     

    WHEREAS,
      Company
      entered into the Second Amended and Restated Credit and Guaranty Agreement
      dated
      as of August 9, 2004, as amended by the First Amendment to Second Amended and
      Restated Credit and Guaranty Agreement dated as of January 1, 2005 and the
      Second Amendment to Second Amended and Restated Credit and Guaranty Agreement
      dated as of June 3, 2005 (the Second Amended and Restated Credit and Guaranty
      Agreement, together with the First Amendment thereto and the Second Amendment
      thereto, the “Existing
      Agreement”),
      among
      Company, Holdings, certain subsidiaries of Company as Guarantors, the Lenders
      party thereto, GSCP, JPMCB, and certain agents;

     

    WHEREAS,
      Company
      has requested that the Lenders amend the Existing Agreement to reduce the
      Applicable Margin for the Term Loans (the Existing Agreement, following the
      effectiveness of this Amendment, the “Amended
      Credit Agreement”);

     

    NOW,
      THEREFORE,
      in
      consideration of the premises made hereunder, and for good and valuable
      consideration, the receipt and sufficiency of which are hereby acknowledged,
      the
      parties hereto, intending to be legally bound, hereby agree as
      follows:

     

    Section
      1. Definitions.
      Unless
      otherwise expressly defined herein, all capitalized terms used herein and
      defined in the Existing Agreement shall be used herein as so
      defined.

     

    Section
      2. Amendment
      to the Existing Agreement: “Applicable Margin” definition.
      Subject
      to the satisfaction of the conditions set forth in Section 5 hereto, clause
      (iii) of the definition of “Applicable Margin” contained in Section 1.1 of the
      Existing Agreement is hereby amended and restated in its entirety as
      follows:

     

    (iii)
      with respect to Term Loans that are (a) Base Rate Loans, an amount equal to
      (I)
      0.75% per annum, if the Leverage Ratio is equal to or less than 4.50:1.00 or
      (II) 1.00% per annum, if the Leverage Ratio is greater than 4.50:1.00 or (b)
      Eurodollar Rate Loans, an amount equal to (I) 1.75% per annum, if the Leverage
      Ratio is equal to or less than 4.50:1.00 or (II) 2.00% per annum, if the
      Leverage Ratio is greater than 4.50:1.00, in each case, with the applicable
      Leverage Ratio calculated in accordance with Section 6.8(d)(ii);
      and

     

    Section
      3. Amendment
      to the Existing Agreement: Prepayment and Repricing Fee.
      Subject
      to the satisfaction of the conditions set forth in Section 5 hereto, the
      Existing Agreement is hereby amended and restated by the addition of the
      following provision to the Existing Agreement as Section 2.13(g):

    


    Prior
      to October 31, 2006, (a) all prepayments of Term Loans with the proceeds of
      a
      substantially concurrent issuance or incurrence of new loans if (i) the sole
      purpose of such issuance or incurrence is to reduce the Applicable Margin
      applicable to the Term Loans and (ii) such new loans have an Applicable Margin
      (or similar interest rate spread) that is, or upon the satisfaction of certain
      conditions could be, lower than the Applicable Margin applicable to the Term
      Loans (excluding a refinancing of all the Loans in connection with another
      transaction not permitted by this Agreement (as determined prior to giving
      effect to any amendment or waiver of this Agreement being adopted in connection
      with such transaction)), and (b) any amendments, amendments and restatements,
      supplements, waivers or modifications to this Agreement that have the effect
      of
      lowering, or upon the satisfaction of certain conditions could lower, the
      Applicable Margin applicable to the Term Loans from the Applicable Margin,
      shall
      be accompanied by a fee equal to 1.00% of the aggregate amount of such
      prepayments in the case of clause (a) above and a fee equal to 1.00% of all
      Term
      Loans in the case of clause (b), in each case payable by the Company to the
      Lenders.

     

    Section
      4. Representations
      and Warranties.
      To
      induce the other parties hereto to enter into this Amendment, each Credit Party
      represents and warrants to each of the Lenders, the Issuing Bank and the
      Administrative Agent that, as of the Amendment Effective Date:

     

    (a) This
      Amendment has been duly authorized, executed and delivered by the Company,
      Holdings and the Guarantors and each of this Amendment and the Amended Credit
      Agreement constitutes each of the Company’s, Holdings’ and each Guarantor’s
      legal, valid and binding obligation, enforceable against it in accordance with
      its terms except as such enforceability may be limited by bankruptcy,
      insolvency, reorganization, moratorium or other similar laws affecting
      creditors’ rights generally and by general principles of equity (regardless of
      whether such enforceability is considered in a proceeding at law or in equity).
      

     

    (b) The
      representations and warranties set forth in Section 4 of the Existing Agreement
      are, after giving effect to this Amendment, true and correct in all material
      respects on and as of the Amendment Effective Date, except where such
      representations and warranties expressly relate to an earlier date (in which
      case they were true and correct in all material respects as of such earlier
      date).

     

    (c) Both
      before and after giving effect to this Amendment, no Default or Event of Default
      has occurred and is continuing.

     

    (d) The
      execution, delivery and performance by the Credit Parties of this Amendment
      do
      not and will not (a) violate any provision of any law or any governmental rule
      or regulation applicable to Holdings or any of its Subsidiaries, any of the
      Organizational Documents of Holdings or any of its Subsidiaries, or any order,
      judgment or decree of any court or other agency of government binding on
      Holdings or any of its Subsidiaries except to the extent such violation,
      individually or in the aggregate, could not reasonably be expected to have
      a
      Material Adverse Effect; (b) conflict with, result in a breach of or
      constitute (with due notice or lapse of time or both) a default under any
      Contractual Obligation of Holdings or any of its Subsidiaries except to the
      extent such conflict, breach or default, individually or in the aggregate,
      could
      not reasonably be expected to have a Material Adverse Effect; (c) result in
      or require the creation or imposition of any Lien upon any of the properties
      or
      assets of Holdings or any of its Subsidiaries except to the extent that the
      creation or imposition of any such Liens, individually or in the aggregate,
      could not reasonably be expected to have a Material Adverse Effect; or
      (d) require any approval of stockholders, members or partners or any
      approval or consent of any Person under any Contractual Obligation of Holdings
      or any of its Subsidiaries, except for such approvals or consents which will
      be
      obtained on or before the Amendment Effective Date and disclosed in writing
      to
      Lenders and except for any such approvals or consents the failure of which
      to
      obtain, individually or in the aggregate, could not reasonably be expected
      to
      have a Material Adverse Effect.

     

    Section
      5. Conditions
      Precedent.
      This
      Amendment shall become effective upon satisfaction of the following conditions
      precedent:

     

                 (a)
Each
      Lender (other than a Defaulting Lender) with outstanding Term Loans shall have
      executed this Amendment, or in the absence of such unanimous consent, the
      provisions of Section 2.25 of the Existing Credit Agreement shall have been
      complied with in connection with Non-Consenting Lenders;

     

                 (b)
Each
      of
      the representations and warranties in Section 4 above shall be true and correct
      in all material respects on and as of the Amendment Effective Date;

     

                 (c)
      JPMCB
      and
      JPMorgan shall have received payment in immediately available funds of its
      fees
      and expenses as set forth in the Fee Letter of even date herewith;
      and

     

                 (d)
      The
      Administrative Agent shall have received such other documents, instruments,
      certificates, opinions and approvals as it may reasonably request.

     

    Section
      6. Survival
      of Representations and Warranties.
      All
      representations and warranties made in this Amendment and the Amended Credit
      Agreement shall survive the execution and delivery of this Amendment, and no
      investigation by Agents or Lenders shall affect the representations and
      warranties or the right of Agents and Lenders to rely upon them. If any
      representation or warranty made in this Amendment or the Amended Credit
      Agreement is false in any material respect as of the date made or deemed made,
      then such shall constitute an Event of Default under the Amended Credit
      Agreement.

     

    Section
      7. Reference
      to Agreement.
      Each of
      the Credit Documents, including the Amended Credit Agreement, and any and all
      other agreements, documents or instruments now or hereafter executed and/or
      delivered pursuant to the terms hereof or pursuant to the terms of the Amended
      Credit Agreement, are hereby amended so that any reference in such Credit
      Documents to the Credit Agreement, whether direct or indirect, shall mean a
      reference to the Amended Credit Agreement. This Amendment shall constitute
      a
      Credit Document under the Amended Credit Agreement.

     

    Section
      8. Costs
      and Expenses.
      Company
      shall pay on demand all reasonable costs and expenses of Agents (including
      the
      reasonable fees, costs and expenses of each counsel to any of the Agents)
      incurred in connection with the preparation, execution and delivery of this
      Amendment.

     

    Section
      9. Governing
      Law.
      THIS
      AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
      THE
      STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL
      OBLIGATIONS LAW OF THE STATE OF NEW YORK).

     

    Section
      10. Execution.
      This
      Amendment may be executed in any number of counterparts and by different parties
      hereto in separate counterparts, each of which when so executed shall be deemed
      to be an original and all of which taken together shall constitute one and
      the
      same agreement. Delivery of an executed counterpart of a signature page to
      this
      Amendment by telecopier shall be effective as delivery of a manually executed
      counterpart of this Amendment.

     

    Section
      11. Limited
      Effect.
      This
      Amendment relates only to the specific matters expressly covered herein, shall
      not be considered to be a waiver of any rights or remedies any Lender may have
      under the Amended Credit Agreement or under any other Credit Document, and
      shall
      not be considered to create a course of dealing or to otherwise obligate in
      any
      respect any Lender to execute similar or other amendments or grant any waivers
      under the same or similar or other circumstances in the future.

     

    Section
      12. Certain
      Waivers.
      Each of
      Company and Guarantors hereby agrees that neither the Agents nor any Lender
      shall be liable under a claim of, and hereby waives any claim against the Agents
      and the Lenders based on, lender liability (including, but not limited to,
      liability for breach of the implied covenant of good faith and fair dealing,
      fraud, negligence, conversion, misrepresentation, duress, control and
      interference, infliction of emotional distress and defamation and breach of
      fiduciary duties) as a result of this Amendment and any discussions or actions
      taken or not taken by the Agents or the Lenders on or before the date hereof
      or
      the discussions conducted in connection therewith, or any course of action
      taken
      by the Agents or any Lender in response thereto or arising therefrom;
provided,
      that
      the foregoing waiver shall not include the waiver of any claims which are based
      on the gross negligence or willful misconduct of any Agent or any Lender or
      any
      of their respective agents. This Section 12 shall survive the execution and
      delivery of this Amendment and the termination of the Amended Credit
      Agreement.

     

    


     

    [signature
      pages follow]

     

    


     


    
      
        
          


          


          
            	 	 	 


          

          


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    IN
      WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
      by
      their respective officers thereunto duly authorized, as of the date first above
      written.

     

    BERRY
      PLASTICS CORPORATION

    


    


    By: /s/
      James M. Kratochvil

    Name:
      James M. Kratochvil

    Title: 
      Executive Vice President and Chief Financial Officer

    


    BPC
      HOLDING CORPORATION

    


    


      By: _/s/
      James M. Kratochvil

        Name:
      James
      M. Kratochvil

        Title: 
      Executive Vice President and Chief Financial Officer

    



    
      
        


        
          	 	 	 


        

        


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          Amendment to Second Amended and Restated Credit and Guaranty
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    GUARANTOR
      SUBSIDIARIES

    


    AeroCon,
      Inc.

    Berry
      Iowa Corporation 

    Berry
      Plastic Design Corporation 

    Berry
      Plastics Technical Services, Inc. 

    Berry
      Sterling Corporation 

    Cardinal
      Packaging, Inc. 

    CPI
      Holding Corporation 

    Knight
      Plastics, Inc. 

    Landis
      Plastics, Inc. 

    Packerware
      Corporation 

    Pescor,
      Inc. 

    Poly-Seal
      Corporation 

    Venture
      Packaging, Inc. 

    Venture
      Packaging Midwest, Inc. 

    Berry
      Plastics Acquisition Corporation II 

    Berry
      Plastics Acquisition Corporation III 

    Berry
      Plastics Acquisition Corporation V 

    Berry
      Plastics Acquisition Corporation VII 

    Berry
      Plastics Acquisition Corporation VIII 

    Berry
      Plastics Acquisition Corporation IX 

    Berry
      Plastics Acquisition Corporation X 

    Berry
      Plastics Acquisition Corporation XI 

    Berry
      Plastics Acquisition Corporation XII 

    Berry
      Plastics Acquisition Corporation XIII 

    Kerr
      Group, Inc. 

    Saffron
      Acquisition Corp. 

    Sun
      Coast
      Industries, Inc. 


    


    


    By: _/s/
      James M. Kratochvil

      Name:
      James M.
      Kratochvil

      Title: 
Executive
      Vice President and Chief Financial Officer

    


    Berry
      Plastics Acquisition Corporation XIV, LLC 

    Berry
      Plastics Acquisition Corporation XV, LLC 

    Setco,
      LLC 

    Tubed
      Products, LLC


    


    By: _/s/
      James M. Kratochvil

      Name:
      James M.
      Kratochvil

      Title: 
Executive
      Vice President and Chief Financial Officer


    
      
        


        
          	 	 	 


        

        


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    DEUTSCHE
      BANK TRUST COMPANY AMERICAS,

    as
      Administrative Agent and a Lender

    


    


    


    By:    
      /s/ Omayra Laucella 

    Name:
      Omayra Laucella

    Title:  
      Vice President

    


    


    By:  
      /s/ Evelyn Lazala 

    Name:
      Evelyn Lazala

    Title:  
      Vice President

    



    
      
        


        
          	 	 	 


        

        


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    GOLDMAN
      SACHS CREDIT PARTNERS L.P.,

    As
      Co-Syndication Agent, Joint Lead Arranger, Joint 

    Bookrunner
      and a Lender

    


    


    By:   /s/
      Robert Schatzman

        Authorized
      Signatory

    


    



    
      
        


        
          	 	 	 


        

        


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    JPMORGAN
      CHASE BANK, N.A.,

    As
      Co-Syndication Agent and a Lender

    


    


    


    By:  
      /s/ Stacey L. Haimes 

    Name:
      Stacey L. Haimes

    Title:  
      Vice President

    


    


    



    
      
        


        
          	 	 	 


        

        


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          Amendment to Second Amended and Restated Credit and Guaranty
          Agreement

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    JP
      MORGAN
      SECURITIES INC.,

    As
      Joint
      Lead Arranger and Joint Bookrunner

    


    


    


    By:   
      /s/ David A. Dwyer 

    Name:
      David A. Dwyer

    Title:  
      Vice President

    


    


     

    



    
      
        


        
          	 	 	 


        

        


        Third
          Amendment to Second Amended and Restated Credit and Guaranty
          Agreement

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