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, whether from the sale of
Pledged Collateral or otherwise, may be applied to or on account of the
Obligations and in such order as Secured Party may elect.  In addition, Secured Party may apply any such
proceeds to or on account of the payment of all costs, fees and expenses
(including, without limitation, reasonable attorneys’ fees) which may be
incurred by Secured Party.


 


7.             Pledgor recognizes that Secured
Party may be unable to effect, or may effect only after such delay which would
adversely affect the value that might be realized from the Pledged Collateral,
a public sale of all or part of the Pledged Collateral by reason of certain
prohibitions contained in the Securities Act of 1933, as amended (“Securities Act”) and may be compelled to resort to one or
more private sales to a restricted group of purchasers who will be obliged to agree,
among other things, to acquire such securities for their own account, for
investment and not with a view to the distribution or resale thereof.  Pledgor agrees that any such private sale may
be at prices and on terms less favorable to Secured Party or the seller than if
sold at public sales, and therefore recognizes and confirms that such private
sales shall not be deemed to have been made in a commercially unreasonable
manner solely because they were made privately. 
Pledgor agrees that Secured Party has no obligation to delay the sale of
any such securities for the period of time necessary to permit the issuer of
such securities to register such securities for public sale under the
Securities Act.


 


8.             In the event that any change is
made or declared in the capital structure of the corporation listed on Schedule
I attached hereto, or Pledgor acquires or in any other manner receives
additional shares in such entity, or any option included within the Pledged
Collateral is exercised, any and all new, substituted or additional
certificates representing or evidencing such shares which have been issued by
reason of any such change or exercise, shall be delivered to and held by
Secured Party under the terms hereof in the same manner as the Pledged
Collateral originally pledged hereunder.


 


9.             So long as no Event of Default has
occurred and is continuing under the Purchase Agreement, the Notes or any other
Transaction Document, and, until Secured Party notifies Pledgor in writing of
the exercise of its rights hereunder, Pledgor shall retain the sole right to
vote the Pledged Collateral and exercise all rights of ownership with respect
to all corporate questions for all purposes not inconsistent with the terms
hereof.


 


10.           Secured Party shall have no
obligation to take any steps to preserve, protect or defend the rights of
Pledgor or Secured Party in the Pledged Collateral against other parties.  Secured Party shall have no obligation to
sell or otherwise deal with the Pledged Collateral at any time for any reason, whether
or not upon request of any Pledgor, and whether or not the value of the Pledged
Collateral, in the opinion of Secured Party or Pledgor, is more or less than
the aggregate amount of the Obligations secured hereby, and any such refusal or
inaction by Secured Party shall not be deemed a breach of any duty which
Secured Party may have under law to preserve the Pledged Collateral.  Except as provided by applicable law, no
duty, obligation or responsibility of any kind is intended to be delegated to
or assumed by Secured Party at any time with respect to the Pledged Collateral.


 


11.           To the extent Secured Party is
required by law to give Pledgor prior notice of any public or private sale, or
other disposition of the Pledged Collateral, Pledgor agrees that ten (10) days
prior written notice to Pledgor shall be a commercially reasonable and
sufficient notice of such sale or other intended disposition.  Pledgor further recognizes and agrees that if
the Pledged Collateral, or a portion thereof, threatens to decline speedily in
value or is of a type customarily sold on a recognized market, Pledgor shall
not be entitled to any prior notice of sale or other intended disposition.


 


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12.           Pledgor shall indemnify, defend and
hold harmless Secured Party from and against any and all claims, losses and
liabilities resulting from any breach by Pledgor of Pledgor’s, or any of their,
representations and covenants under this Agreement.


 


13.           Pledgor hereby waives notice of (a) acceptance
of this Agreement, (b) the existence and incurrence from time to time of
any Obligations under the Purchase Agreement, the Notes or any other
Transaction Document, (c) the existence of any Event of Default, the
making of demand, or the taking of any action by Secured Party under the
Purchase Agreement, the Notes or any other Transaction Document and (d) demand
and default hereunder.


 


14.           This Agreement shall remain in full
force and effect and shall not be limited, impaired or otherwise affected in any
way by reason of (a) any delay in making demand on Pledgor for, or delay
in enforcing or failure to enforce, performance or payment of Companies’
Obligations, (b) any failure, neglect or omission on Secured Party’s part
to perfect any lien upon, protect, exercise rights against, or realize on, any
property of Pledgor, any Borrower or any other party securing the Obligations, (c) any
failure to obtain, retain or preserve, or the lack of prior enforcement of, any
rights against any person or persons or in any property, (d) the
invalidity or unenforceability of any Obligations or rights in any Collateral
under the Purchase Agreement, the Notes, the Security Agreement, the Mortgage
or any other Transaction Document, (e) the existence or nonexistence of
any defenses which may be available to Companies, or any of them, with respect
to the Obligations, or (f) the commencement of any bankruptcy,
reorganization, liquidation, dissolution or receivership proceeding or case
filed by or against any Borrower.


 


15.           Pledgor covenants and agrees that
Pledgor shall not, without the prior written consent of Secured Party, sell,
encumber or grant any lien, security interest or option on or with respect to
any of the Pledged Collateral except as permitted in the Purchase Agreement.


 


16.           Pledgor hereby authorizes and hereby
instructs the issuer of the Pledged Collateral to comply with any instruction
received by it from Secured Party in writing that states that an Event of
Default has occurred and is continuing and, without any other or further
instructions from Pledgor, and Pledgor agrees that the issuer shall be fully
protected in so complying.


 


17.           Any failure of or delay by Secured
Party to exercise any right or remedy hereunder shall not be construed as a
waiver of the right to exercise the same or any other right or remedy at any
other time.


 


18.           This Agreement constitutes the entire
agreement between the parties hereto regarding the subject matter hereof and
may be modified only by a written instrument signed by Pledgor and Secured
Party.


 


19.           This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applied to
contracts to be performed wholly within the State of New York.  Any judicial proceeding brought by or against
Pledgor with respect to this Agreement or any related agreement may be brought
in any court of competent jurisdiction in the State of New York, United States
of America, and, by execution and delivery of this Agreement, Pledgor accepts
for itself and in connection with its properties, generally and
unconditionally, the non-exclusive jurisdiction of the aforesaid courts, and
irrevocably agrees to be bound by any judgment rendered thereby in connection
with this Agreement.  Pledgor hereby
waives personal service of any and all process upon it and 


 


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consents that all such service
of process may be made by registered mail (return receipt requested) or by
nationally recognized overnight courier directed to Pledgor at their address as
set forth on the signature page hereto, unless Pledgor notifies Secured
Party of a change in such address, and service so made shall be deemed
completed three (3) days after the same shall have been so deposited in
the mail of the United States of America. 
Nothing herein shall affect the right to serve process in any manner
permitted by law or shall limit the right of Secured Party to bring proceedings
against Pledgor in the courts of any other jurisdiction.  Pledgor waives any objection to jurisdiction
and venue of any action instituted hereunder and shall not assert any defense
based on lack of jurisdiction or venue or based upon forum non conveniens.  Pledgor waives the right to remove any
judicial proceeding brought against such Pledgor in any state court to any
federal court.  Any judicial proceeding
by Pledgor against Secured Party involving, directly or indirectly, any matter
or claim in any way arising out of, related to or connected with this Agreement
or any related agreement, shall be brought only in a federal or state court
located in New York.


 


20.           All communications which Secured
Party may provide to Pledgor herein shall be sent to Pledgor at the address set
forth below in writing, and may be delivered in a manner described in Section 7.4
of the Purchase Agreement.


 


21.           This Agreement shall be binding upon
and inure to the benefit of the parties hereto, and their respective successors
and assigns.


 


22.           PLEDGOR HEREBY WAIVES THE RIGHT TO
TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, OR COUNTERCLAIM OF ANY KIND
ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE PURCHASE AGREEMENT, THE
OBLIGATIONS OR THE PLEDGED COLLATERAL.


 


SIGNATURE ON FOLLOWING PAGE


 


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IN WITNESS WHEREOF, this Agreement has been
executed and delivered as of the date first set forth above.


 


 


	
   

  	
  EVERGREEN OPERATIONS, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Diana L.
  Kubik

  
	
   

  	
  Name:

  	
  Diana L.
  Kubik

  
	
   

  	
  Title:

  	
  Vice President and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
  Address:

  	
  1225 17th Street, Suite 1300

  
	
   

  	
   

  	
  Denver, Colorado 80202

  
	
   

  	
   

  	
  Attn: Chief Financial Officer

  
	
   

  	
   

  	
  Facsimile: 303-293-8430

  
				



 


[SIGNATURE PAGE TO PLEDGE AGREEMENT]


 


S-1

















 


SCHEDULE I


 


Pledged Collateral


 


The following
Collateral is hereby pledged by Pledgor to Secured Party pursuant to the
Collateral Pledge Agreement to which this Schedule is attached:


 


Pledged Shares


 


	
  Name of Corporation

  	
   

  	
  State

  of

  Incorp.

  	
   

  	
  Total

  Number

  of

  Shares

  Authorized

  to be

  Issued

  	
   

  	
  Total

  Number

  Of

  Shares

  Issued

  	
   

  	
  Number

  of

  Shares

  Issued

  to

  Owner

  	
   

  	
  Class

  of

  Shares

  Issued

  to

  Owner

  	
   

  	
  Stock

  Certificate

  Number(s)

  	
   

  	
  Owner

  of

  Shares

  	
   

  
	
  Buckeye Industrial Mining Co.

  	
   

  	
  OH

  	
   

  	
  100

  	
   

  	
  100

  	
   

  	
  100

  	
   

  	
  Common Stock

  	
   

  	
  1

  	
   

  	
  Pledgor