Exhibit 10.31
PLEDGE
AGREEMENT
This Pledge Agreement (“ Agreement
”), dated March 20, 2009, is made by Evergreen
Operations, LLC a Delaware limited liability company (“
Pledgor ”) in favor of Centurion Credit Funding LLC
(“ Secured Party ”).
Background
A.
To induce Secured Party to extend credit to Pledgor, Evergreen
Energy Inc., and Buckeye Industrial Mining Co. (collectively, the
“ Companies ”), as evidenced by that certain
Note Purchase Agreement of even date herewith among Companies and
Secured Party (as it may be amended, supplemented, replaced or
restated from time to time, the “ Purchase Agreement
”), Pledgor executes and delivers this Agreement to Secured
Party. All capitalized terms used herein and not otherwise
defined shall have the same meanings assigned to such terms in the
Purchase Agreement, or if not expressly defined in the Purchase
Agreement, the Security Agreement.
B.
This Agreement is given and is intended to provide additional
security for the Obligations.
NOW THEREFORE, for other good and sufficient
consideration, the receipt of which is hereby acknowledged,
Pledgor, intending to be legally bound hereby, covenants and agrees
as follows:
1.
Pledgor, for the purpose of granting a continuing lien and security
interest, does hereby assign, pledge, hypothecate, deliver and set
over to Secured Party, its successors and assigns, the investment
property described on Schedule I attached hereto and made
part hereof, together with any additions, exchanges, replacements
and substitutions therefor, dividends and distributions from time
to time with respect thereto, and the proceeds thereof, including,
without limitation, the following property (collectively, the
“ Pledged Collateral ”): all of the shares of
capital stock in the corporation listed on Schedule I
attached hereto, whether now owned or hereafter acquired by such
Pledgor or in which such Pledgor now or hereafter has any rights,
options or warrants, together with all certificates representing
such shares and all rights (but none of the obligations) under or
arising out of the applicable organizational documents of such
corporation.
2.
The pledge and security interest described herein shall continue in
effect to secure all Obligations from time to time incurred or
arising unless and until all Obligations have been indefeasibly
paid and satisfied in full in cash and the Purchase Agreement has
been terminated.
3.
Pledgor hereby represents and warrants that:
(a)
Except as pledged herein, Pledgor has not sold, assigned,
transferred, pledged or granted any option or security interest in
or otherwise hypothecated the Pledged Collateral in any manner
whatsoever and the Pledged Collateral is pledged herewith free and
clear of any and all liens, security interests, encumbrances,
claims, pledges, restrictions, legends, and options;
(b)
Pledgor has the full power and authority to execute, deliver, and
perform under this Agreement and to pledge the Pledged Collateral
hereunder;
(c)
This Agreement constitutes the valid and binding obligation of
Pledgor, enforceable in accordance with its terms and the pledge of
the Pledged Collateral referred to herein is
not in violation of and shall not create any
default under any agreement, undertaking or obligation of
Pledgor;
(d)
The Pledged Collateral has been duly and validly authorized and
issued by the issuer thereof and such Pledged Collateral is fully
paid for and non-assessable;
(e)
Pledgor is pledging hereunder all of the Pledgor’s interest
and ownership in all entities listed on Schedule I attached
hereto;
(f)
Contemporaneously with the execution hereof, Pledgor is delivering
to Secured Party all certificates representing or evidencing the
Pledged Collateral, accompanied by duly executed instruments of
transfer or assignments in blank, to be held by Secured Party in
accordance with the terms hereof; and
4.
If an Event of Default occurs and is continuing under the Purchase
Agreement, the Notes or any other Transaction Document, then
Secured Party may, at its sole option in accordance with the terms
of the Purchase Agreement, exercise from time to time with respect
to the Pledged Collateral any and/or all rights and remedies
available to it hereunder, under the Uniform Commercial Code as
adopted in the State of New York (“ UCC ”), or
otherwise available to it, at law or in equity, including, without
limitation, the right to dispose of the Pledged Collateral at
public or private sale(s) or other proceedings and Pledgor
agrees that, if permitted by law, Secured Party or its nominee may
become the purchaser at any such sale(s).
5.
(a) In
addition to all other rights granted to Secured Party herein or
otherwise available at law or in equity, Secured Party shall have
the following rights, each of which may be exercised at Secured
Party’s sole discretion exercised in good faith (but without
any obligation to do so), at any time following the occurrence and
during the continuance of an Event of Default under the Purchase
Agreement, the Notes or any other Transaction Document, without
further consent of Pledgor: (i) transfer the whole or any part
of the Pledged Collateral into the name of itself or its nominee or
to conduct a sale of the Pledged Collateral pursuant to the UCC or
pursuant to any other applicable law; (ii) vote the Pledged
Collateral; (iii) notify the persons obligated on any of the
Pledged Collateral to make payment to Secured Party of any amounts
due or to become due thereon; and (iv) release, surrender or
exchange any of the Pledged Collateral at any time, or to
compromise any dispute with respect to the same. Secured
Party may proceed against the Pledged Collateral, or any other
collateral securing the Obligations, in any order, and against
Pledgor and any other obligor (including, without limitation, the
Companies), jointly and/or severally, in any order to satisfy the
Obligations. Pledgor waives and releases any right to require
Secured Party to first collect any of the Obligations secured
hereby from any other collateral of Pledgor or any other party
(including, without limitation, the Companies) securing the
Obligations under any theory of marshalling of assets, or
otherwise. All rights and remedies of Secured Party are
cumulative, not alternative.
(b)
Pledgor hereby irrevocably appoints Secured Party its
attorney-in-fact, subject to the terms hereof, following the
occurrence and during the continuance of an Event of Default under
the Purchase Agreement, the Notes or any other Transaction
Document, at Secured Party’s option, (i) to effectuate
the transfer of the Pledged Collateral on the books of the issuer
thereof to the name of Secured Party or to the name of Secured
Party’s nominee, designee or assignee; (ii) to endorse
and collect checks payable to such Pledgor representing
distributions or other payments on the Pledged Collateral; and
(iii) to carry out the terms and provisions hereof.
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6.
The proceeds of any Pledged Collateral received by Secured Party at
any time,
