exv10w21



 





Exhibit 10.21



2007 CONSULTING AGREEMENT




THIS 2007 CONSULTING AGREEMENT (this “Agreement”) is entered into on this 5th day of March 2007, with an effective
date of November 15, 2006 (the “Effective Date”) by and between Penn Octane Corporation, a Delaware corporation (“Penn
Octane”) and Rio Vista Energy Partners L.P., a Delaware limited partnership (“Rio Vista”) (Penn Octane and Rio Vista
collectively, the “Company”) and JBR Capital Resources, Inc., a Nevada Corporation (“Consultant”), as follows:



Agreement




In consideration of the covenants and agreements contained herein, the parties agree as follows:



Section 1: Engagement of Services




1.1 Services Performed by Consultant. Consultant shall serve as a special advisor to Penn Octane and Rio Vista
and shall provide the following services (the “Services”) to the Company: assistance with the Company’s acquisition
and disposition of assets, assistance with other transactions involving the Company, and such other services as may be
mutually agreed between the Company and Consultant. Consultant’s duties may be reasonably modified at the Company’s
discretion from time to time. Consultant will report directly to the chief executive officer and the chairman of the
board of directors of Penn Octane and the chief executive officer and the chairman of the board of managers of the
general partner of Rio Vista.



Consultant shall at all times faithfully and diligently perform the Services under this Agreement and use
Consultant’s best efforts, skill, and attention for the fulfillment of the Services and the interests of the Company.
Consultant shall have discretion and control of the rendering of the Services and the manner in which said Services are
performed. Consultant shall perform all such Services under the name and as a representative of the Company to any
third parties engaged in discussions with the Company. Unless otherwise agreed to by the parties, Consultant shall
have no obligation to work any particular hours or days, nor shall Consultant be obligated to devote full time to the
performance of the Services.



1.2 Company Affiliates. Consultant acknowledges and agrees that the Company may, from time to time, request
Consultant to provide the Services or such other related services to any of the Company’s Affiliates, subject to the
terms and conditions of this Agreement. For purposes of this Agreement, “Affiliates” shall mean a parent company, or
an affiliated or subsidiary corporation or any other legal entity that is owned, whether entirely or partially, or
controlled by the Company. As used in this definition, “owned or controlled by” means owns or holds the right to vote
any of the stock or units of such entity, including without limitation, the Company’s affiliated limited partnerships
and limited liability companies in the United States and the Company’s affiliated entities in Mexico. To the extent
that the Consultant provides any services to the Affiliates, such Affiliates would have all the rights and benefits provided to the Company hereunder, as if such Affiliates were the
Company.





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1.3 Independent Contractor. Consultant enters into this Agreement as, and shall continue to be, an independent
contractor. Under no circumstances shall Consultant look to the Company as his employer, or as a partner, agent or
principal. There shall be no tax withholdings taken from any Fees paid to Consultant pursuant to this Agreement
(including, without limitation, FICA, state and federal unemployment compensation contributions, and state and federal
income taxes), and Consultant shall pay, when and as due, any and all taxes incurred as a result of Consultant’s
compensation pursuant to this Agreement. Upon request, Consultant shall provide the Company with proof of such payment.



Consultant will indemnify and hold harmless the Company from and against all claims, damages, losses and expenses,
including reasonable fees and expenses of attorneys and other professionals, relating to Consultant’s failure to pay
such taxes as well as any obligation imposed by law on the Company to pay any withholding taxes, social security,
unemployment or disability insurance, or similar items in connection with compensation received by Consultant pursuant
to this Agreement.



Consultant also understands and agrees that Consultant shall be solely responsible for complying with all federal,
state, and local laws requiring business permits, certificates, and licenses required to carry out the Services to be
performed by Consultant under this Agreement. Furthermore, Consultant recognizes that it is Consultant’s responsibility
to obtain all insurance coverage (including workers’ compensation) for Consultant. Upon request, Consultant shall
provide the Company with proof of such coverage.



1.4 Agency. It is expressly understood and agreed that Consultant shall only represent the Company to the
extent expressly authorized by this Agreement, and in no other way, and that Consultant shall not be an agent of the
Company. In this regard, Consultant shall have no authority to enter into any agreements or other binding obligations
on the Company’s behalf without the prior specific written authorization of the Company, and that Consultant shall not
hold himself out as an officer, employee or agent of the Company; provided, however, that Consultant may hold himself
out as a representative of the Company as specifically authorized by this Agreement or otherwise by the Company.



Section 2: Compensation




2.1 Payment of Fees. In consideration of the Services rendered by Consultant to the Company and/or to the
Affiliates, the Company agrees to pay the following fees (“Fees”) to Consultant:



(a)  an amount equal to $2,000.00 per day of Services, each such day of Services to be authorized in advance by
the Company. No Fees shall be due or payable for days of Services unless authorized or approved by the Company.
Consultant shall (i) submit each invoice for Services to the Company for review and approval, (ii) furnish a reasonably
detailed description of Services for each day covered by an invoice, (iii) furnish separate invoices for Services
performed on behalf of Penn Octane and on behalf of Rio Vista, and (iv) deliver all invoices to the Company within
thirty (30) days following the month in which the Services were performed. Subject to the foregoing, Fees under this
Section 2.1(a) will be due and payable to Consultant thirty (30) days following the receipt by the Company of
Consultant’s approved invoice for Services; and




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(b) an amount equal to two percent (2%) of the net proceeds to the Company resulting from a sale of assets to a
third party introduced to the Company by Consultant. Net proceeds shall equal the total purchase price for the assets,
subject to any adjustments contained the purchase and sale agreement, net of transaction costs. Purchase price
adjustments shall not include payment of intercompany debt, and transaction costs shall not include taxes or other
costs not directly related to the sale. Fees under this Section 2.1(b) will be due and payable to Consultant
thirty (30) days following the receipt by the Company of such net proceeds. Consultant shall be entitled to Fees with
respect to any such sale of assets that occurs after the Effective Date and on or before ninety (90) days following any
termination or expiration of this Agreement. Consultant shall not be entitled to any Fees with respect to any sale of
assets that (i) occurs more than ninety (90) days following any termination or expiration of this Agreement or more
than one year following the Effective Date, whichever first occurs, or (ii) is made at any time to a third party not
introduced to the Company by Consultant. For purposes of this paragraph, TransMontaigne Product Services Inc. and its
affiliates shall be deemed to be a third party introduced to the Company by Consultant.



Penn Octane will be responsible for payment of Fees only with respect to Services relating to Penn Octane. Rio
Vista will be responsible for payment of Fees only with respect to Services relating to Rio Vista. With respect to
Services relating to both Penn Octane and Rio Vista, the Fees will be shared equally by Penn Octane and Rio Vista
unless otherwise determined by the Company. Rio Vista will reimburse Penn Octane for any Fees that Penn Octane pays to
Consultant on Rio Vista’s behalf.



In the event of any disagreement between the Company and Consultant with regard to the calculation of Fees, the
amount of Fees shall be conclusively determined by the Company’s independent public accountants within thirty (30) days
following written request by either the Company or Consultant, and the Fees will be due and payable ten (10) days
following such determination.



Nothing contained in this Agreement shall preclude the Company from paying additional fees or compensation to
Consultant in connection with the completion of any transaction relating to the Services. Any understanding regarding
such additional fees or compensation will be memorialized in a separate written agreement between the parties. No
additional fees shall be due or owing by Company to Consultant in the absence of such a separate agreement.



2.2 Expenses. Consultant shall provide receipts for all actual, reasonable travel and other out-of-pocket
expenses incurred by Consultant as necessary in connection with the performance of the Services by Consultant.
Consultant agrees to submit to the Company such documentation as may be necessary to substantiate all such expenses and
reimbursements for deduction by the Company as reasonable and necessary under Section 162 of the Internal Revenue Code.
No expense claim submitted by Consultant more than ninety (90) days after incurred shall be reimbursed.





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2.3 Taxes. Fees do not include taxes. To the extent that Consultant is required to pay any federal, state or
local income, sales, use, property or value-added taxes based upon the Fees and/or the Services provided under this
Agreement, such taxes shall be the sole responsibility of Consultant.



Section 3: Term; Termination




3.1 Term. The initial term of this Agreement shall be six (6) months beginning on the Effective Date unless
terminated sooner in accordance with the provisions of this Section 3.1. This Agreement shall automatically
renew for an additional six (6) months at the end of each 6-month term unless terminated upon written notice to the
other party at least thirty (30) days before the end of such term. Each of the Company and Consultant may terminate
this Agreement, with or without cause, at any time upon thirty (30) days’ written notice to the other party.
Notwithstanding the foregoing, the Company may revoke the authority of Consultant to act as a representative of the
Company at any time upon written notice to Consultant. The provisions of this Agreement specified in
Section 10.12 shall survive the expiration or termination of this Agreement.



3.2 Final Payments. Following termination of this Agreement in accordance with Section 3.1, any
accrued, but unpaid, Fees shall be shall be paid to Consultant in accordance with Section 2.1. Within thirty
(30) days following the date of such termination, Consultant shall submit a final expense reimbursement request to the
Company in accordance with Section 2.2.



Section 4: Confidentiality.




4.1 Duty to Maintain Confidential Information.



(a) The Company and the Affiliates have previously furnished to Consultant, and may continue to furnish to
Consultant, such information, proprietary data and access to the Company’s personnel and records (all such information
and access, “Information”) as reasonably necessary and/or appropriate for Consultant to perform the Services, the
confidentiality of which gives the Company and the Affiliates a competitive advantage in its business. As used herein,
the term “Information” is to be broadly construed and includes, but is not limited to, (i) presentations, ideas, trade
secrets, processes, systems, techniques, formulas, source and object code, data, programs, know-how, flowcharts,
methods, compounds, diagrams, drawings, models, specifications, improvements, discoveries, developments, designs, and
other works of authorship, whether patented or registered for trademark or copyright protections, if any, (ii)
information regarding marketing, sales, licensing, accounting, product or service development, assets, competitive
analyses, unpublished financial statements, budgets, forecasts, prices, costs, business plans, research and development
plans, clients, client marketing, research and any other confidential client activity, suppliers, and employees,
(iii) information relating to potential acquisitions, dispositions and financing of the Company and Affiliates, and
(iv) any other information of the type which the Company and/or the Affiliates have a legal obligation to keep
confidential or which the Company and/or Affiliate treats as confidential or proprietary, whether or not owned or
developed by the Company or the Affiliates. The term “Information” shall also include any and all such Information
pertaining to the Company, its Affiliates, and their respective customers and suppliers.



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(b) During the time that this Agreement remains in effect and at all times thereafter, Consultant agrees:



(1) to keep the Information confidential and not to copy, publish, transmit, or disclose to others or allow any
other party to copy, publish, transmit, or disclose to others, any Information, except in accordance with Consultant’s
fiduciary duty to the Company pursuant to this Agreement and in furtherance of the interests of the Company and the
Affiliates;



(2) to use the Information exclusively for the purpose of performing the Services under this Agreement
and for no other purpose; and



(3) that the Information is, shall be, and shall remain the exclusive property of the Company and the
Affiliates, and Consultant shall neither have nor acquire any right, title, or interest therein.



(c) The foregoing confidentiality obligations of Consultant shall not apply to any information that is (i) a
matter of public knowledge (from a source or sources other than Consultant), (ii) independently developed by a person
not a party to this Agreement without the use, directly or indirectly, of the Information, (iii) disclosed by a person
not a party to this Agreement without violation of any obligation of confidentiality, or (iv) required by law or the
order of any court or governmental agency, or in any litigation or similar proceeding to be disclosed, provided that
Consultant shall, prior to making any such required disclosure, notify the Company and/or the Affiliate in sufficient
time to permit them to seek an appropriate protective order.



4.2. Third Party Information. Consultant understands that the Company and the Affiliates have received and in
the future will receive from third parties confidential or proprietary information (“Third Party Information”) subject
to a duty of the Company and the Affiliates to hold such information in confidence and to use it only for the limited,
authorized purpose of performing its obligations to the third party. Both during and after the term of this Agreement,
Consultant will hold all Third Party Information in the strictest confidence and will not disclose, misappropriate,
disseminate, publish, or use it in any manner or form, except as required by the Services for the Company and/or the
Affiliates or as expressly authorized in writing by an officer of the Company and/or the Affiliates.



4.3 Breach of Confidentiality. Both parties agree that in the event of a breach, threatened breach, violation,
or evasion of the terms of this Section 4, immediate and irreparable injury shall occur to the Company and/or
its Affiliates, that such injury may be impossible to measure or remedy in monetary damages, and the Company and/or the
Affiliates shall be authorized to seek all equitable remedies, including injunctive relief or specific performance, in
addition to any other legal or equitable remedies that may be available under this Agreement and/or at law.



4.4 Return of Company Information. Upon termination of this Agreement or upon request by the Company and/or
the Affiliates, Consultant will promptly deliver to the Company and the Affiliates all drawings, notes, memoranda,
presentations, brochures, specifications, programs, reports, and other documents and manifestations, with all copies
and any other materials containing or disclosing any Information, Third Party Information or any other materials related to the Company or the Affiliates
or the Services, whether prepared by Consultant or another party. Consultant agrees not to retain any written,
electronic or other tangible material containing or concerning any Information or Third Party Information of the
Company and/or the Affiliates and to maintain the confidentiality of this Information, Third Party Information and
materials in the future.





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4.5 Trading in Company Securities. Consultant shall not buy, sell or conduct any other transaction in or
relating to the securities of the Company at any time when Consultant is in possession of material, nonpublic
information concerning the Company, its Affiliates, or its or their securities. Notwithstanding the foregoing,
Consultant may buy, sell or conduct any other transaction in the securities of the Company directly with the Company or
an Affiliate of the Company at any time. The restrictions contained in this Section 4.5 shall not apply with
respect to information that has been publicly disclosed by the Company in a manner consistent with the provisions of
Rule 101(e) of Regulation FD promulgated under the Securities Exchange Act of 1934.



Section 5: Assignment of Ownership




5.1 Work Product.



(a) Consultant agrees and hereby intends that all information, trade secrets, data, discoveries, programs,
business plans, documents, materials and works of authorship or other intellectual property arising out of, resulting
from, related to, or in connection with the Services provided by Consultant, or otherwise conceived or discovered by
Consultant, alone or with others, under this Agreement, or in connection with services rendered by Consultant to the
Company or the Affiliates before the Effective Date (collectively, the “Work Product”) are specially ordered or
commissioned works and shall be considered work made for hire as provided in the U.S. Copyright Act (17 U.S.C. 101(2)).
All Work Product and the benefits thereof shall immediately and automatically be the sole and absolute property of the
Company and/or the Affiliates, as the case may be.



(b) In addition to the foregoing, Consultant hereby irrevocably assigns, conveys and transfers to the Company
and/or to the Affiliates, their successors and assigns, as the case may be, all of Consultant’s right, title and
interest worldwide in all copyrights, patents, trade secrets, confidential and proprietary rights in and to the Work
Product, including any derivations or modifications thereto and any associated moral rights, and any other work product
created by Consultant for the Company or the Affiliates or during any time Consultant is performing services for the
Company or the Affiliates. Further, Consultant agrees to execute, verify and deliver such additional assignment
documentation with respect to the Work Product as the Company or the Affiliates may request from time to time. If
Consultant has any rights in and to the Work Product that cannot be assigned, (i) Consultant hereby unconditionally and
irrevocably agrees to waive and hereby does waive enforcement of such rights against Company and the Affiliates, their
successors, assigns and licensees, and (ii) Consultant agrees to grant and hereby does grant to Company and the
Affiliates, their successors, assigns and licensees, a royalty-free, worldwide, perpetual, irrevocable, exclusive
license to use, copy, modify, transfer, offer for sale and distribute the Work Product for any and all legal purposes.
In addition, Consultant shall assist the Company and the Affiliates in obtaining patents, copyrights and any other
available legal protection for the Work Product.


(c) Nothing in this Section 5.1 shall be interpreted to alter or modify Consultant’s status as an
independent contractor.



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5.2 Enforcement of Rights. Consultant shall assist the Company and the Affiliates in every proper way to
obtain, and enforce the Company’s and/or the Affiliates’ United States and foreign rights relating to the Work Product
or the Information in any and all countries. To that end, Consultant shall execute, verify, and deliver such documents
and perform such other acts (including appearances as a witness) as the Company or the Affiliates may reasonably
request for use in applying for, obtaining, perfecting, evidencing, sustaining and enforcing such rights and the
assignment thereof. If the Company or the Affiliates are unable for any reason to obtain Consultant’s signature, after
reasonable effort, on any documentation needed in connection with the foregoing obligations, Consultant hereby
irrevocably designates and appoints the Company and the Affiliates and their duly authorized agents as Consultant’s
attorney-in-fact to act for and on Consultant’s behalf to execute, verify and file any such documents and to do all
other lawfully permitted acts to further the purposes of this Section 5 with the same legal force and effect as
if executed by Consultant. Consultant hereby irrevocably waives and assigns to the Company and the Affiliates, any and
all claims, of any nature whatsoever, which Consultant now or may hereafter have against the Company and/or the
Affiliates for infringement with respect to any Work Product.



Section 6: Restrictive Covenants




6.1 Competing Activities. During the period of Consultant’s engagement with the Company, without the prior
written consent of the Company: (a) Consultant shall not directly or indirectly engage in any employment, occupation,
consulting, or other business activity which the Company determines in good faith to be in competition with the Company
or its Affiliates; and (b) Consultant shall not usurp or take advantage of any such business activity without first
offering the opportunity to the Company and/or the Affiliates.



6.2 Compliance with Laws. Consultant agrees that in the course of fulfilling Consultant’s responsibilities
under this Agreement, Consultant shall not engage in any conduct, furnish any information or take any other action
which would violate or cause the Company to violate any United States law or lose any United States federal tax
benefits, including but not limited to any of the activities described in or prohibited by The Foreign Corrupt
Practices Act of 1977, Section 999 of The Internal Revenue Code of 1986, The Export Administration Act of 1984, and all
regulations promulgated thereunder. Furthermore, Consultant agrees that in performing the Services Consultant will
comply with and avoid violation of any other applicable laws of the Mexico, the United States of America, the State of
California, the State of Texas and any other jurisdiction or political subdivision thereof, including regulations,
rules and orders promulgated under such laws and customs having the effect of law. Without limiting the generality of
the foregoing, Consultant will not make any offer, payment, promise to pay or authorization of the payment of any
money, or any offer, gift, promise to give, or authorization of the giving of anything of value, directly or
indirectly, to any government official, political party, party official, or candidate for public or political office to
induce such persons to use their influence with a government or instrumentality in order to obtain an improper business
advantage for Consultant or the Company. Consultant will not retain any sub-agent or representative in connection with the performance of the Services without the prior written consent of the
Company.




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6.3 Equitable Remedies. Consultant acknowledges that irreparable injury will result to the Company from
violation of any of the terms of this Agreement, specifically those identified under Sections 4, 5 and 6.
Therefore, Consultant expressly agrees that the Company shall be entitled, in addition to damages and any other
remedies provided by law, to an injunction (without notice and without the necessity of posting a bond) or other
equitable remedy respecting such violation or continued violation.



Section 7: Consultant’s Representations.




7.1 No Conflicts. Consultant represents and warrants that performance of this Agreement does not and will not
breach any other agreement to which Consultant is a party. Consultant further represents and warrants that Consultant
has not entered into, and agrees not to enter into, any agreement, either oral or written, in conflict with or in
violation of this Agreement.



7.2 Binding Obligation. Upon its execution and delivery, this Agreement shall constitute the valid and binding
obligation of Consultant, enforceable against Consultant in accordance with its terms, except that such enforcement may
be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors’ rights and general principles of equity.



Section 8: Company’s Representations




8.1 Authority. Company represents that it has the full power and authority to enter into and perform this
Agreement and that the Company has authorized the execution, delivery, and performance of this Agreement.



8.2 Binding Obligation. Upon its execution and delivery, this Agreement shall constitute the valid and binding
obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforcement
may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors’ rights and general principles of equity.



Section 9: Indemnification




9.1 Indemnification. Consultant shall indemnify the Company and the Affiliates and their respective directors,
officers, managers, employees, general and limited partners, stockholders, agents, affiliates, attorneys, successors
and assigns (collectively, the “Indemnified Parties”) from and against any and all third party claims, losses, damages,
liabilities and costs (including legal and other professional fees and expenses), joint or several, to which such
Indemnified Parties may become subject relating to or arising out of Consultant’s actual breach of his obligations
under this Agreement. Consultant shall reimburse the Indemnified Parties for all expenses (including legal and other
professional fees and expenses) incurred in connection with the investigation, preparation or defense of any pending or threatened claim or any action or proceeding arising therefrom, whether or not any of the
Indemnified Parties is a party to such claim or action.





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Section 10: Miscellaneous




10.1. Assignment. This Agreement and the Services to be provided hereunder may not be assigned or otherwise
transferred by Consultant, or by operation of law, without the prior written consent of the Company. The Company may
assign or transfer this Agreement to any Affiliate, without the consent of Consultant. The Company’s assignment of
this Agreement to any Affiliate shall in no way affect Consultant’s obligations under this Agreement.



10.2 Waiver and Amendments. No waiver, amendment or modification of any provision of this Agreement shall be
effective unless consented to by both parties in writing. No failure or delay by either party in exercising any right,
power or remedy under this Agreement shall operate as a waiver of any such right, power or remedy. No waiver of any
breach of any covenant or provision contained herein shall be deemed a waiver of any preceding or succeeding breach
thereof or of any other covenant or provision. No extension of time for performance of any obligation or act shall be
deemed an extension of the time for performance of any other obligation or act.



10.3 Notices. Any notice or communication provided for or required by this Agreement to be in writing shall
be: (a) hand delivered, (b) sent by certified mail with full postage, or (c) sent by overnight courier service with
proof of delivery. Any notice so sent shall be deemed received upon the earlier of an actual receipt or three business
days after proper posting. The addresses of the parties shall be as indicated below, but the parties may change their
notice addresses by giving written notice of such change to the other party at its current address in accordance with
this Section.



	 	 	 
	If to Consultant:
	 	JBR Capital Resources, Inc.

	 
	 	Attn:  Jerome B. Richter, President

	 
	 	335 Tomahawk Drive
	 
	 	Palm Desert, California  92211

	 

	 	

	If to Company:
	 	Penn Octane Corporation

	 
	 	Rio Vista Energy Partners L.P.

	 
	 	Attn:  Chief Executive Officer

	 
	 	820 Gessner Road, Suite 1285
	 
	 	Houston, Texas  77024

	 

	 	

	 
	 	With a copy to:

	 

	 	

	 
	 	Kevin W. Finck, Esq.

	 
	 	Two Embarcadero Center, Suite 1670

	 
	 	San Francisco, California 94111











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10.4 Professional Fees. In the event of the bringing of any action, suit, or arbitration by a party hereto
against another party hereunder by reason of any breach of any of the covenants, agreements, or provisions arising out
of this Agreement, the prevailing party shall be entitled to recover all costs and expenses of that action, suit, or arbitration, at trial, in arbitration, or on appeal, and in collection therewith,
including but not limited to, reasonable attorneys’ fees, accounting, and other professional fees resulting therefrom.



10.5 Legal and Equitable Remedies. Due to the personal and unique nature of Consultant’s services pursuant to
this Agreement, and because Consultant shall become acquainted with and have access to the Company’s proprietary
information, the Company shall have the right to enforce this Agreement and any of its provisions by injunction,
specific performance or other equitable relief, without bond, and without prejudice to any other rights and remedies
that the Company may otherwise have to enforce this Agreement.



10.6 Arbitration. Any controversy or claim arising out of or relating to this Agreement (other than claims for
preliminary injunctive relief or other prejudgment or equitable remedies) shall be settled by binding arbitration in
Houston, Texas or Los Angeles, California (at the election of the party commencing the action) in accordance with the
Commercial Rules of the American Arbitration Association then in effect, and judgment upon an award rendered in such
arbitration may be entered in any court having jurisdiction thereof.



BOTH PARTIES HAVE READ AND UNDERSTAND THIS SECTION 10.6, WHICH DISCUSSES ARBITRATION. THE PARTIES UNDERSTAND
THAT BY SIGNING THIS AGREEMENT, THEY AGREE TO SUBMIT ANY FUTURE CLAIMS ARISING OUT OF RELATING TO, OR IN CONNECTION
WITH THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY, CONSTRUCTION, PERFORMANCE, BREACH, OR TERMINATION THEREOF TO
BINDING ARBITRATION, AND THAT THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER OF EACH PARTIES’ RIGHT TO A JURY TRIAL AND
RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS OF THE RELATIONSHIP BETWEEN CONSULTANT AND THE
COMPANY.



10.7 Severability. Should any one or more of the provisions of this Agreement be determined to be illegal or
unenforceable, all other provisions of the Agreement shall be given effect separately from those provisions of this
Agreement so determined and the other provisions shall not be affected by the illegality or unenforceability.



10.8 Representation by Counsel; Interpretation. Each party to this Agreement acknowledges that such party has
caused this Agreement to be reviewed and/or had the opportunity to have it approved by legal counsel of such party’s
own choice. Consultant acknowledges and agrees that the Law Offices of Kevin Finck has represented the Company, not
Consultant, in connection with the preparation and execution of this Agreement and that the Law Offices of Kevin Finck
may continue to represent the Company in matters related to this Agreement and otherwise. Consultant has been advised
to obtain independent legal counsel in such connection. The Company acknowledges and agrees that the Law Offices of
Kevin Finck has represented and may continue to represent Consultant in matters unrelated to this Agreement. The
parties hereby waive any claim of conflict of interest based on the foregoing. The parties have negotiated the
provisions of this Agreement, and any presumption that an ambiguity contained in this Agreement shall be construed
against the party that caused this Agreement to be drafted shall not apply to the interpretation of this Agreement.




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10.9 Governing Law and Venue. This Agreement has been entered into in the State of Texas and shall be governed
by, interpreted under, and construed and enforced in accordance with the internal laws of Texas. All claims,
arbitrations and lawsuits in connection with this Agreement must be brought in Harris County, Texas or Los Angeles
County, California. Consultant and Company hereby agree to this jurisdiction and venue.



10.10 Entire Agreement; Acknowledgment. This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes any and all prior agreements, understandings,
discussions, and/or commitments of any kind with respect to the subject matter hereof, including without limitation the
Consulting Agreement between the parties or their affiliates dated on or about July 19, 2005 and the Amended and
Restated Consulting Agreement between the parties or their affiliates dated as of November 15, 2005 (collectively, the
“Prior Agreements”); provided, however, that the Agreement between Jerome B. Richter (“Richter”) and Penn Octane dated
as of November 15, 2005 regarding Richter’s promissory note payable to Penn Octane shall not constitute a Prior
Agreement for purposes of this Section 10.10 and shall remain in full force and effect. Consultant hereby
acknowledges the full satisfaction of all of the Company’s obligations pursuant to the Prior Agreements. This
Agreement may not be amended or supplemented, nor may any right hereunder be waived, except in writing signed by each
of the parties.



10.11 Severability. If any provision of this Agreement is declared void, or otherwise unenforceable, such
provision shall be deemed to be severed from this Agreement, which shall otherwise remain in full force and effect.



10.12 Survival. The provisions of Sections 1.3, 2.1, 4, 5, 6, 9, and 10 shall survive any termination
or expiration of this Agreement.



10.13 Further Assurances. The parties shall, from time to time, promptly execute and deliver such further
instruments, documents and papers and perform such further acts as may be necessary or proper to carry out and effect
the terms of this Agreement.



10.14 Counterparts. This agreement may be executed in one or more counterparts, each of which shall be deemed
an original and all of which together shall constitute one and the same instrument. Facsimile signatures shall have
the same legal effect as original signatures.



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IN WITNESS WHEREOF, the parties have executed this Consulting Agreement as of the date first written above.



	 	 	 
	“The Company”

	 	“Consultant”
	 

	 	

	PENN OCTANE CORPORATION

	 	JBR CAPITAL RESOURCES, INC.
	 

	 	

	By:

	 	By: 
	 

	 	 
	Ian T. Bothwell,
Acting Chief Executive Officer

	 	Jerome B. Richter,
President
	 

	 	

	RIO VISTA ENERGY PARTNERS L.P.

	 	

	 

	 	

	By: Rio Vista GP LLC, General Partner

	 	

	 

	 	

	By:

	 	

	 

	 	

	Ian T. Bothwell,
Acting Chief Executive Officer

	 	











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