Guarantee And Collateral Agreement

Exhibit 10.2


GUARANTEE AND COLLATERAL AGREEMENT


made by


B&G FOODS, INC.

and certain of its Subsidiaries

in favor of

LEHMAN COMMERCIAL PAPER INC. as Administrative Agent

Dated as of October 14, 2004


Table of Contents


SECTION 1.

DEFINED TERMS


1.1.

Definitions


1.2.

Other Definitional Provisions


SECTION 2.

GUARANTEE


2.1.

Guarantee


2.2.

Right of Contribution


2.3.

No Subrogation


2.4.

Amendments, etc. with respect to the Borrower Obligations


2.5.

Guarantee Absolute and Unconditional


2.6.

Reinstatement


2.7.

Payments


SECTION 3.

GRANT OF SECURITY INTEREST


SECTION 4.

REPRESENTATIONS AND WARRANTIES


4.1.

Representations in Credit Agreement


4.2.

Title; No Other Liens


4.3.

Perfected First Priority Liens


4.4.

Jurisdiction of Organization; Identification Number; Chief Executive Office


4.5.

Inventory and Equipment


4.6.

Farm Products


4.7.

Pledged Securities


4.8.

Receivables


4.9.

Contracts


4.10.

Intellectual Property


4.11.

Vehicles


SECTION 5.

COVENANTS


5.1.

Covenants in the Credit Agreement


5.2.

Delivery of Instruments, Certificated Securities and Chattel Paper


5.3.

Maintenance of Insurance


5.4.

Payment of Obligations


5.5.

Maintenance of Perfected Security Interest; Further Documentation


5.6.

Changes in Name, etc.


5.7.

Notices


5.8.

Pledged Securities


5.9.

Receivables


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5.10.

Contracts


5.11.

Intellectual Property


5.12.

Deposit Accounts


SECTION 6.

REMEDIAL PROVISIONS


6.1.

Certain Matters Relating to Receivables


6.2.

Communications with Obligors; Grantors Remain Liable


6.3.

Pledged Stock


6.4.

Proceeds to be Turned Over To Administrative Agent


6.5.

Application of Proceeds


6.6.

Code and Other Remedies


6.7.

Registration Rights


6.8.

Waiver; Deficiency


SECTION 7.

THE ADMINISTRATIVE AGENT


7.1.

Administrative Agent' s Appointment as Attorney-in-Fact, etc.


7.2.

Duty of Administrative Agent


7.3.

Financing Statements


7.4.

Authority of Administrative Agent


SECTION 8.

MISCELLANEOUS


8.1.

Amendments in Writing


8.2.

Notices


8.3.

No Waiver by Course of Conduct; Cumulative Remedies


8.4.

Enforcement Expenses; Indemnification


8.5.

Successors and Assigns


8.6.

Set-Off


8.7.

Counterparts


8.8.

Severability


8.9.

Section Headings


8.10.

Integration


8.11.

GOVERNING LAW


8.12.

Submission To Jurisdiction; Waivers


8.13.

Acknowledgments


8.14.

Additional Grantors


8.15.

Releases


8.16.

WAIVER OF JURY TRIAL


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GUARANTEE AND COLLATERAL AGREEMENT

GUARANTEE AND COLLATERAL AGREEMENT, dated as of October 14, 2004, made by each of the signatories hereto (together with any other entity that may become a party hereto as provided herein, the " Grantors" ), in favor of LEHMAN COMMERCIAL PAPER INC., as Administrative Agent (as defined below).

W I T N E S S E T H:

WHEREAS, B&G Foods, Inc., a Delaware corporation (the " Borrower" ) is party to the Credit Agreement, dated as of October 14, 2004 (as amended, supplemented or otherwise modified from time to time, the " Credit Agreement" ), with the several banks and other financial institutions from time to time parties thereto (the " Lenders" ), Lehman Brothers Inc., as sole advisor, sole lead arranger and sole bookrunner (in such capacity, the " Arranger" ), The Bank of New York, as documentation agent (in such capacity, the " Documentation Agent" ), Fleet National Bank, a Bank of America company, as syndication agent (in such capacity, the " Syndication Agent" ), and Lehman Commercial Paper Inc., as administrative agent (in such capacity, the " Administrative Agent" );

WHEREAS, pursuant to the Credit Agreement, the Lenders have severally agreed to make, or to permit to continue to be outstanding, extensions of credit to the Borrower upon the terms and subject to the conditions set forth therein;

WHEREAS, the Borrower is a member of an affiliated group of companies that includes each other Grantor;

WHEREAS, the proceeds of the extensions of credit under the Credit Agreement have been and will be used in part to enable the Borrower to make valuable transfers to one or more of the other Grantors in connection with the operation of their respective businesses;

WHEREAS, the Borrower and the other Grantors are engaged in related businesses, and each Grantor will derive substantial direct and indirect benefit from the extensions of credit under the Credit Agreement; and

WHEREAS, it is a condition precedent to the obligation of the Lenders to make their respective extensions of credit to the Borrower under the Credit Agreement that the Grantors shall have executed and delivered this Agreement to the Administrative Agent for the ratable benefit of the Secured Parties (as defined below);

NOW, THEREFORE, in consideration of the premises and to induce the Arranger, the Agents and the Lenders to enter into the Credit Agreement and to induce the Lenders to make their respective extensions of credit to the Borrower thereunder, each Grantor hereby agrees with the Administrative Agent, for the ratable benefit of the Secured Parties, as follows:


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SECTION 1. DEFINED TERMS

1.1. Definitions . (a) Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement and the following terms which are defined in Articles 8 and 9 of the Uniform Commercial Code in effect in the State of New York on the date hereof are used herein as so defined: Accounts, Certificated Security, Chattel Paper, Deposit Accounts, Documents, Equipment, Farm Products, Goods, Instruments, Inventory, Letter of Credit Rights and Supporting Obligations.

(b) The following terms shall have the following meanings:" Agreement" : this Guarantee and Collateral Agreement, as the same may be amended, supplemented or otherwise modified from time to time.

" Borrower Foreign Letter of Credit Obligations" : the collective reference to all obligations and liabilities of the Borrower (including, without limitation, interest accruing at the then applicable rate provided in the documentation executed in connection with any Permitted Foreign Currency Letter of Credit after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) to any Foreign Currency L/C Issuing Lender, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, any Permitted Foreign Currency Letter of Credit or any other document made, delivered or given in connection therewith, in each case whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including, without limitation, all fees and disbursements of counsel to the Lenders that are required to be paid by the Borrower pursuant to the terms of any of the foregoing agreements).

" Borrower Hedge Agreement Obligations" : the collective reference to all obligations and liabilities of the Borrower (including, without limitation, interest accruing at the then applicable rate provided in any Specified Hedge Agreement after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) to any Lender or any Qualified Counterparty, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, any Specified Hedge Agreement or any other document made, delivered or given in connection therewith, in each case whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including, without limitation, all fees and disbursements of counsel to the Lenders that are required to be paid by the Borrower pursuant to the terms of any of the foregoing agreements).

" Borrower Obligations" : the collective reference to (i) the Borrower Revolving Credit Obligations, (ii) the Borrower Hedge Agreement Obligations, but only to the extent that, and only so long as, the Borrower Revolving Credit Obligations are secured and guaranteed pursuant hereto, (iii) Borrower Foreign Letter of Credit Obligations, but


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only to the extent that, and only so long as, the Borrower Foreign Letter of Credit Obligations are secured and guaranteed pursuant hereto, and (iv) all other obligations and liabilities of the Borrower, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement (including, without limitation, all fees and disbursements of counsel to the Administrative Agent or to the Lenders that are required to be paid by the Borrower pursuant to the terms of this Agreement or the Credit Agreement).

" Borrower Revolving Credit Obligations" : the collective reference to the unpaid principal of and interest on the Revolving Credit Loans, Swing Line Loans and Reimbursement Obligations and all other obligations and liabilities of the Borrower (including, without limitation, interest accruing at the then applicable rate provided in the Credit Agreement after the maturity of the Revolving Credit Loans, Swing Line Loans and Reimbursement Obligations and interest accruing at the then applicable rate provided in the Credit Agreement after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) to the Administrative Agent or any Revolving Credit Lender, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, the Credit Agreement, the other Loan Documents referred to in the Credit Agreement, any Letter of Credit or any other document made, delivered or given in connection therewith, in each case whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including, without limitation, all fees and disbursements of counsel to the Administrative Agent or to the Revolving Credit Lenders that are required to be paid by the Borrower pursuant to the terms of any of the foregoing agreements).

" Capital Markets Indentures" : the Senior Note Indenture and Senior Subordinated Note Indenture and any indenture governing Indebtedness permitted under Section 6.1 of the Credit Agreement which refinances the Indebtedness under such indentures.

" Collateral" : as defined in Section 3.

" Collateral Account" : any collateral account established by the Administrative Agent as provided in Section 6.1 or 6.4.

" Commitments" : the Revolving Credit Commitments.

" Copyright Licenses" : any written agreement naming any Grantor as licensor or licensee (including, without limitation, those listed in Schedule 6 ), granting any right under any Copyright.

" Copyrights" : (i) all copyrights arising under the laws of the United States, any other country or any political subdivision thereof, whether registered or unregistered and whether published or unpublished (including, without limitation, those listed in Schedule


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6 ), all registrations and recordings thereof, and all applications in connection therewith, including, without limitation, all registrations, recordings and applications in the United States Copyright Office, and (ii) the right to obtain all renewals thereof.

" Excluded Assets" : the collective reference to (a) any Capital Stock of any Excluded Foreign Subsidiary in excess of 65% of the voting Capital Stock of such Excluded Foreign Subsidiary (b) any real property and any interests therein and (c) any contract, General Intangible, Intellectual Property, Copyright License, Patent License or Trademark License (" Intangible Assets" ), if and only for so long as the grant of a security interest hereunder shall constitute or result in a breach, termination or default under any such lease, license, contract, property right or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the Uniform Commercial Code of any relevant jurisdiction or any other applicable law or principles of equity); provided however , that such security interest shall attach immediately to any portion of such lease, license, contract, property rights or agreement that does not result in any of the consequences specified above.

" Foreign Currency L/C Issuing Lender" : with respect to any Permitted Foreign Currency Letters of Credit, the issuer thereof that, at the time such Permitted Foreign Currency Letter of Credit was issued, was a Lender or an affiliate of a Lender.

" General Intangibles" : all " general intangibles" as such term is defined in Section 9-102 of the Uniform Commercial Code in effect in the State of New York on the date hereof and, in any event, including, without limitation, with respect to any Grantor, all contracts, agreements, instruments and indentures in any form, and portions thereof, to which such Grantor is a party or under which such Grantor has any right, title or interest or to which such Grantor or any property of such Grantor is subject, as the same may from time to time be amended, supplemented or otherwise modified, including, without limitation, (i) all rights of such Grantor to receive moneys due and to become due to it thereunder or in connection therewith, (ii) all rights of such Grantor to damages arising thereunder and (iii) all rights of such Grantor to perform and to exercise all remedies thereunder.

" Guarantor Obligations" : with respect to any Guarantor, all obligations and liabilities of such Guarantor which may arise under or in connection with this Agreement (including, without limitation, Section 2) or any other Loan Document to which such Guarantor is a party, in each case whether on account of guarantee obligations, reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including, without limitation, all fees and disbursements of counsel to the Administrative Agent or to the Lenders that are required to be paid by such Guarantor pursuant to the terms of this Agreement or any other Loan Document).

" Guarantors" : the collective reference to each Grantor other than the Borrower.

" Hedge Agreements" : as to any Person, all interest rate swaps, currency exchange agreements, commodity swaps, caps or collar agreements or similar arrangements entered into by such Person providing for protection against fluctuations in interest rates,


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currency exchange rates or commodity prices or the exchange of nominal interest obligations, either generally or under specific contingencies. For avoidance of doubt, Hedge Agreements shall include any interest rate swap or similar agreement that provides for the payment by the Borrower or any of its Subsidiaries of amounts based upon a floating rate in exchange for receipt by the Borrower or such Subsidiary of amounts based upon a fixed rate.

" Insurance" : (i) all insurance policies covering any or all of the Collateral (regardless of whether the Administrative Agent is the loss payee thereof) and (ii) any key man life insurance policies.

" Intellectual Property" : the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under United States, multinational or foreign laws or otherwise, including, without limitation, the Copyrights, the Copyright Licenses, the Patents, the Patent Licenses, the Trademarks and the Trademark Licenses, and all rights to sue at law or in equity for any infringement or other impairment thereof, including the right to receive all proceeds and damages therefrom.

" Intercompany Note" : any promissory note evidencing loans made by any Grantor to the Borrower or any of its Subsidiaries.

" Investment Property" : the collective reference to (i) all " investment property" as such term is defined in Section 9-102(a)(49) of the New York UCC and (ii) whether or not constituting " investment property" as so defined, all Pledged Notes and all Pledged Stock.

" Issuers" : the collective reference to each issuer of a Pledged Security.

" New York UCC" : the Uniform Commercial Code as from time to time in effect in the State of New York.

" Obligations" : (i) in the case of the Borrower, the Borrower Obligations, and (ii) in the case of each Guarantor, its Guarantor Obligations.

" Patent License" : all agreements, whether written or oral, providing for the grant by or to any Grantor of any right to manufacture, use or sell any invention covered in whole or in part by a Patent, including, without limitation, any of the foregoing referred to in Schedule 6 .

" Patents" : (i) all letters patent of the United States, any other country or any political subdivision thereof, all reissues and extensions thereof, including, without limitation, any of the foregoing referred to in Schedule 6 , (ii) all applications for letters patent of the United States or any other country and all divisions, continuations and continuations-in-part thereof, including, without limitation, any of the foregoing referred to in Schedules 6 , and (iii) all rights to obtain any reissues or extensions of the foregoing.

" Pledged Notes" : all promissory notes listed on Schedule 2 , all Intercompany Notes at any time issued to any Grantor and all other promissory notes issued to or held


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by any Grantor (other than promissory notes issued in connection with extensions of trade credit by any Grantor in the ordinary course of business).

" Pledged Securities" : the collective reference to the Pledged Notes and the Pledged Stock.

" Pledged Stock" : the shares of Capital Stock listed on Schedule 2 , together with any other shares, stock certificates, options or rights of any nature whatsoever in respect of the Capital Stock of any Person that may be issued or granted to, or held by, any Grantor while this Agreement is in effect; provided , that Excluded Assets shall not constitute Pledged Stock.

" Proceeds" : all " proceeds" as such term is defined in Section 9-102(a)(64) of the Uniform Commercial Code in effect in the State of New York on the date hereof and, in any event, including, without limitation, all dividends or other income from Investment Property, collections thereon or distributions or payments with respect thereto.

" Qualified Counterparty" : with respect to any Specified Hedge Agreement, any counterparty thereto that, at the time such Specified Hedge Agreement was entered into, was a Lender or an affiliate of a Lender.

" Receivable" : any right to payment for goods sold or leased or for services rendered, whether or not such right is evidenced by an Instrument or Chattel Paper and whether or not it has been earned by performance (including, without limitation, any Account).

" Secured Parties" : the collective reference to the Administrative Agent, the Other Agents, the Lenders (including any Issuing Lender in its capacity as Issuing Lender), any Foreign Currency L/C Issuing Lenders and any Qualified Counterparties.

" Securities Act" : the Securities Act of 1933, as amended.

" Specified Hedge Agreement" : any Hedge Agreement (a) entered into by (i) the Borrower or any of its Subsidiaries and (ii) any Qualified Counterparty.

" Trademark License" : any agreement, whether written or oral, providing for the grant by or to any Grantor of any right to use any Trademark, including, without limitation, any of the foregoing referred to in Schedules 6 .

" Trademarks" : (i) all trademarks, trade names, corporate names, company names, business names, fictitious business names, trade styles, service marks, logos and other source or business identifiers, and all goodwill associated therewith, now existing or hereafter adopted or acquired, all registrations and recordings thereof, and all applications in connection therewith, whether in the United States Patent and Trademark Office or in any similar office or agency of the United States, any State thereof or any other country or any political subdivision thereof, or otherwise, and all common-law rights related thereto, including, without limitation, any of the foregoing referred to in Schedules 6 , and (ii) the right to obtain all renewals thereof.


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" Vehicles" : all cars, trucks, trailers, construction and earth moving equipment and other vehicles covered by a certificate of title law of any state and all tires and other appurtenances to any of the foregoing.

1.2. Other Definitional Provisions . (a) The words " hereof" , " herein" , " hereto" and " hereunder" and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section and Schedule references are to this Agreement unless otherwise specified.

(b) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms. (c) Where the context requires, terms relating to the Collateral or any part thereof, when used in relation to a Grantor, shall refer to such Grantor' s Collateral or the relevant part thereof. SECTION 2. GUARANTEE

2.1 Guarantee . (a) Each of the Guarantors hereby, jointly and severally, absolutely, unconditionally and irrevocably, guarantees to the Administrative Agent, for the ratable benefit of the Secured Parties and their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Borrower Obligations.

(b) Anything herein or in any other Loan Document to the contrary notwithstanding, the maximum liability of each Guarantor hereunder and under the other Loan Documents shall in no event exceed the amount which can be guaranteed by such Guarantor under applicable federal and state laws relating to the insolvency of debtors (after giving effect to the right of contribution established in Section 2.2). (c) Each Guarantor agrees that the Borrower Obligations may at any time and from time to time exceed the amount of the liability of such Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Administrative Agent or any Secured Party hereunder. (d) The guarantee contained in this Section 2 shall remain in full force and effect until (subject to reinstatement pursuant to Section 2.6) all the Borrower Obligations and the obligations of each Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full, no Letter of Credit shall be outstanding and the Commitments shall be terminated, notwithstanding that from time to time during the term of the Credit Agreement the Borrower may be free from any Borrower Obligations. (e) No payment made by the Borrower, any of the Guarantors, any other guarantor or any other Person or received or collected by the Administrative Agent or any Secured Party from the Borrower, any of the Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of any Guarantor hereunder which shall,

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notwithstanding any such payment (other than any payment made by such Guarantor in respect of the Borrower Obligations or any payment received or collected from such Guarantor in respect of the Borrower Obligations), remain liable for the Borrower Obligations up to the maximum liability of such Guarantor hereunder until (subject to reinstatement pursuant to Section 2.6) the Borrower Obligations are paid in full, no Letter of Credit shall be outstanding and the Commitments are terminated. 2.2. Right of Contribution . Each Subsidiary Guarantor hereby agrees that to the extent that a Subsidiary Guarantor shall have paid more than its proportionate share of any payment made hereunder, such Subsidiary Guarantor shall be entitled to seek and receive contribution from and against any other Subsidiary Guarantor hereunder which has not paid its proportionate share of such payment. Each Subsidiary Guarantor' s right of contribution shall be subject to the terms and conditions of Section 2.3. The provisions of this Section 2.2 shall in no respect limit the obligations and liabilities of any Subsidiary Guarantor to the Administrative Agent and the Secured Parties, and each Subsidiary Guarantor shall remain liable to the Administrative Agent and the Secured Parties for the full amount guaranteed by such Subsidiary Guarantor hereunder.

2.3. No Subrogation . Notwithstanding any payment made by any Guarantor hereunder or any set-off or application of funds of any Guarantor by the Administrative Agent or any Secured Party, no Guarantor shall be entitled to be subrogated to any of the rights of the Administrative Agent or any Secured Party against the Borrower or any other Guarantor or any collateral security or guarantee or right of offset held by the Administrative Agent or any Secured Party for the payment of the Borrower Obligations, nor shall any Guarantor seek or be entitled to seek any contribution or reimbursement from the Borrower or any other Guarantor in respect of payments made by such Guarantor hereunder, until all amounts owing to the Administrative Agent and the Secured Parties by the Borrower on account of the Borrower Obligations are paid in full, no Letter of Credit shall be outstanding and the Commitments are terminated. If any amount shall be paid to any Guarantor on account of such subrogation rights at any time when all of the Borrower Obligations shall not have been paid in full, such amount shall be held by such Guarantor in trust for the Administrative Agent and the Secured Parties, segregated from other funds of such Guarantor, and shall, forthwith upon receipt by such Guarantor, be turned over to the Administrative Agent in the exact form received by such Guarantor (duly indorsed by such Guarantor to the Administrative Agent, if required), to be applied against the Borrower Obligations, whether matured or unmatured, in such order as the Administrative Agent may determine.

2.4. Amendments, etc. with respect to the Borrower Obligations . Each Guarantor shall remain obligated hereunder notwithstanding that, without any reservation of rights against any Guarantor and without notice to or further assent by any Guarantor, any demand for payment of any of the Borrower Obligations made by the Administrative Agent or any Secured Party may ...