COMMERCIAL PLEDGE AND SECURITY AGREEMENT
PRINCIPAL LOAN DATE MATURITY LOAN NO L/C 310 CALL COLLATERAL ACCOUNT OFFICER INITIALS
251,495.00 04-02-1997 103
<FN>
References in the shaded area are for Lender's use only and do not limit the applicability of
this document to any particular loan or item.
Borrower: PENN OCTANE CORPORATION Lender: Bay Area Bank
900 VETERANS BLVD., SUITE 240 900 Veterans Blvd.
REDWOOD CITY, CA 94063 P.O. Box 2579
Redwood City, CA 94064
Grantor: JEROME B. RICHTER
26280 DORI LANE
LOS ALTOS, CA 94022
THIS COMMERCIAL PLEDGE AND SECURITY AGREEMENT is entered into among PENN
OCTANE CORPORATION (referred to below as "Lender").
GRANT OF SECURITY INTEREST. For valuable consideration, Grantor grants to
Lender a security interest in the Collateral to secure the Indebtedness and
agrees that Lender shall have the rights stated in this Agreement with respect
to the Collateral, in addition to all other rights which Lender may have by
law.
DEFINITIONS. The following words shall have the following meanings when used
in this Agreement:
AGREEMENT. The work "Agreement" means this Commercial Pledge and
Security Agreement, as this Commercial Pledge and Security Agreement may be
amended or modified from time to time, together with all exhibits and
schedules attached to this Commercial Pledge and Security Agreement form time
to time.
BORROWER. The word "Borrower" means each and every person or entity
signing the Note, including without limitation PENN OCTANE CORPORATION.
COLLATERAL. The word "Collateral" means the following specifically
described property, which Grantor has delivered or agrees to deliver (or cause
to be delivered or appropriate book-entries made) immediately to Lender,
together with all Income and Proceeds as described below:
850,000 (1,700,000 POST SPLIT SHARES OF INTERNATIONAL ENERGY DEVELOPMENT
CORPORATION "IEDC") IN THE NAME OF J.B. RICHTER.
In addition, the word "Collateral" includes all property of Grantor, in the
possession of Lender (or in the possession of a third party subject to the
control of Lender), whether now or hereafter existing and whether tangible or
intangible in character, including without limitation each of the following:
(a) All property to which Lender acquires title or documents of
title.
(b) All property assigned to Lender.
(c) All promissory notes, bills, of exchange, stock certificates,
bonds, savings passbooks, time certificates of deposit, insurance, policies,
and all other instruments and evidences of an obligation.
(d) All records relating to any of the property described in this
Collateral section, whether in the form of a writing, microfilm, microfiche,
or electronic media.
EVENT OF DEFAULT. The words "Events of Default" mean and include without
limitation any of the Events of Default set forth below in the section titled
"Events of Default".
GRANTOR. The word "Grantor" means JEROME B. RICHTER. Any Grantor who
signs this Agreement, but does not sign the Note, is signing this Agreement
only to grant a security interest in Grantor's interest in the Collateral to
Lender and is not personally liable under the Note except as otherwise
provided by contract or law (e.g., personal liability under a guaranty or as a
surety).
GUARANTOR. The word "Guarantor" means and includes without limitation
each and all of the guarantors, sureties, and accommodation parties in
connection with the Indebtedness.
INCOME AND PROCEEDS. The words "Income and Proceeds' mean all present
and future income, proceeds, earnings, increases, and substitutes from or for
the Collateral of every kind and nature, including without limitation all
payments, interests, profits, distributions, benefits, rights, options,
warrants, dividends, stock dividends, stock splits, stock rights, regulatory
dividends, distributions, subscriptions, monies, claims for money due and to
become due, proceeds of any insurance on the Collateral, shares of stock of
different par value or no par value issued in substitution or exchange for
shares. Included in the Collateral, and all other property Grantor is
entitled to receive on account of such Collateral, including accounts,
documents, instruments, chattel paper, and general intangibles.
INDEBTEDNESS. The word "Indebtedness" means the indebtedness evidenced
by the Note, including all principal and interest, together with all other
indebtedness and costs and expenses for which Borrower or Grantor is
responsible under this Agreement or under any of the Related Documents.
LENDER. The word "Lender" means Bay Area Bank, its successors and
assigns.
NOTE. The word "Note" means the note or credit agreement dated April 2,
1997, in the principal amount of $251,495.00 from Borrower to Lender, together
with all renewals of extensions of, modifications of, refinancings of,
consolidations of and substitutions for the note or credit agreement.
OBLIGOR. The word "Obligor" means and includes without limitation any
and all persons or entities obligated to pay money or to perform some other
act under the Collateral.
RELATED DOCUMENTS. The words "Related Documents" mean and include
without limitation all promissory notes, credit agreements, loan agreements,
environmental agreements, guaranties, security agreements, mortgages, deeds of
trust, and all other instruments, agreements and documents, whether now or
hereafter existing, executed in connection with the Indebtedness.
BORROWER'S WAIVERS AND RESPONSIBILITIES. Except as otherwise required under
this Agreement or by applicable law, (a) Borrower agrees that Lender need not
tell Borrower about any action or inaction Lender takes in connection with
this Agreement; (b) Borrower assumes the responsibility for being and keeping
informed about the Collateral; and (c) Borrower waives any defenses that may
arise because of any action or inaction of Lender, including without
limitation any failure of Lender to realize upon the Collateral or any delay
or any delay by Lender in realizing upon the Collateral, and Borrower agrees
to remain liable under the Note no matter what action Lender takes of fails to
take under this Agreement.
GRANTOR'S REPRESENTATIONS AND WARRANTIES. Grantor warrants that: (a) this
Agreement is executed at Borrower's request and not at the request of Lender;
(b) Grantor has the full right, power and authority to enter into this
Agreement and to pledge the Collateral to Lender; (c) Grantor has established
adequate means of obtaining from Borrower on a continuing basis information
about Borrower's financial condition; and (d) Lender has made no
representation to Grantor about Borrower or Borrower's creditworthiness
GRANTOR'S WAIVERS. Except as prohibited by applicable law, Grantor waives any
right to require Lender to (a) make any presentment, protest, demand, or
notice of any kind, including notice of change of any terms of repayment of
the Indebtedness, default by Borrower or any other guarantor or surety, any
action or nonaction taken by Borrower, Lender, or any other guarantor or
surety of Borrower, or the creation of new or additional Indebtedness; (b)
proceed against any person, including Borrower, before proceeding against
Grantor; (c) proceed against any collateral for the Indebtedness, including
Borrower's collateral, before proceeding against Grantor; (d) apply any
payments or proceeds received against the Indebtedness in any order, (e) give
notice of the terms, time, and place of any sale of any collateral pursuant to
the Uniform Commercial Code or any other law governing such sale, (f) disclose
any information about the Indebtedness, the Borrower, any collateral, or any
other guarantor or surety, or about any action or nonaction of Lender; or (g)
pursue any remedy or course of action in Lender's power whatsoever.
Grantor also waives any and all rights or defenses arising by reason of (h)
disability or other defense of Borrower, any other guarantor or surety or any
other person; (i) the cessation from any cause whatsoever, other than payment
in full, of the Indebtedness; (j) the application of proceeds of the
Indebtedness by Borrower for purposes other than the purposes understood and
intended by Grantor and Lender; (k) any act of omission or commission by
Lender which directly or indirectly results in or contributes to the discharge
of Borrower or any other guarantor or surety, or the Indebtedness, or the loss
or release of any collateral by operation of law or otherwise; (l) any
statute of limitations in any action under this Agreement or on the
Indebtedness; or (m) any modification or change in terms of the Indebtedness,
whatsoever, including without limitation, the renewal, extension,
acceleration, or other change in the time payment of the Indebtedness is due
and any change in the interest rate. Until all indebtedness is paid in full,
Grantor waives all rights and defenses arising out of an election of remedies
by Lender, even though that election of remedies, such as nonjudicial
foreclosure with respect to security for a guaranteed obligations, has
destroyed Grantor's rights of subrogation and reimbursement against Borrower
or any other grantor or surety by the operation of Section 580a, 580b, 580d or
726 of the California Code of Civil Procedure, or otherwise. This waiver
includes, without limitation, any loss of rights Grantor may suffer by reason
of any rights or protections of Borrower in connection with any
anti-deficiency laws or other laws limiting or discharging the Indebtedness or
Borrower's obligations (including, without limitation, Section 726, 580a,
580b, and 580d of the California Code of Civil Procedure). Grantor waives all
rights and protections of any kind which Grantor may have for any reason,
which would affect or limit the amount of any recovery by Lender from Grantor
following a nonjudicial sale or judicial foreclosure of any real or personal
property security for the Indebtedness including, but not limited to, the
right to any fair market value hearing pursuant to California Code of Civil
Procedure Section 580a. Grantor understands and agrees that the foregoing
waivers are waivers of substantive rights and defenses to which Grantor might
otherwise be entitled under state and federal law. The rights and defenses
waived include, without limitation, those provided by California laws of
suretyship and guaranty, anti-deficiency laws, and the Uniform Commercial
Code. Grantor acknowledges that Grantor has provided these waivers of rights
and defenses with the intention that they be fully relied upon by Lender.
Until all Indebtedness is paid in full, Grantor waives any right to enforce
any remedy Lender may have against Borrower or any other guarantor, surety, or
other person, and further, Grantor waives any right to participate in any
collateral for the Indebtedness now or hereafter held by Lender.
If now or hereafter (a) Borrower shall be or become insolvent, and (b) the
Indebtedness shall not at all times until paid be fully secured by collateral
pledged by Borrower, Grantor hereby forever waives and relinquishes in favor
of Lender and Borrower, and their respective successors, any claim or right to
payment Grantor may now have or hereafter have or acquire against Borrower, by
subrogation or otherwise, so that at not time shall Grantor be or become a
"creditor" of Borrower within the meaning of 11 U.S.C. section 547(b), or any
successor provision of the Federal bankruptcy laws.
GRANTOR'S REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE COLLATERAL.
Grantor represents and warrants to Lender that:
OWNERSHIP. Grantor is the lawful owner of the Collateral free and clear
of all security interests, liens, encumbrances and claims of others except as
disclosed to and accepted by Lender in writing prior to execution of this
Agreement.
RIGHT TO PLEDGE. Grantor has the full right, power and authority to
enter into this Agreement and to pledge the Collateral.
BINDING EFFECT. This Agreement is binding upon Grantor, as well as
Grantor's heirs, successors, representatives and assigns, and is legally
enforceable in accordance with its terms.
NO FURTHER ASSIGNMENT. Grantor has not, and will not, sell, assign,
transfer, encumber or otherwise dispose of any of Grantor's rights in the
Collateral except as provided in this Agreement.
NO DEFAULTS. There are no defaults existing under the Collateral, and
there are no offsets or counterclaims to the same. Grantor will strictly and
promptly perform each of the terms, conditions, covenants and agreements
contained in the Collateral which are to be performed by Grantor, if any.
NO VIOLATION. The execution and delivery of this Agreement will not
violate any law or agreement governing Grantor or to which Grantor is a party.
LENDER'S RIGHTS AND OBLIGATIONS WITH RESPECT TO COLLATERAL. Lender may hold
the Collateral until all the Indebtedness has been paid and satisfied and
thereafter may deliver the Collateral to any Grantor. Lender shall have the
following rights in addition to all other rights it may have by law.
MAINTENANCE AND PROTECTION OF COLLATERAL. Lender may, but shall not be
obligated to, take such steps as it deems necessary or desirable to protect,
maintain, insure, store, or care for the Collateral, including payment of any
liens or claims against the Collateral. Lender may charge any cost incurred
in so doing to Grantor.
INCOME AND PROCEEDS FROM THE COLLATERAL. Lender may receive all Income
and Proceeds and add it to the Collateral. Grantor agrees to deliver to
Lender immediately upon receipt in the exact form received and without
commingling with other property, all Income and Proceeds from the Collateral
which may be received by paid, or delivered to Grantor or for Grantor's
account, whether as an addition to, in discharge of, in substitution of, or in
exchange for any of the Collateral.
APPLICATION OF CASH. At Lender's option, Lender may apply any cash,
whether included in the Collateral or received as Income and Proceeds or
through liquidation, sale, or retirement of the Collateral, to the
satisfaction of the Indebtedness or such portion thereof as Lender shall
choose, whether or not matured.
TRANSACTIONS WITH OTHERS. Lender may (a) extend time for payment or
other performance, (b) grant a renewal or change in terms or conditions, or
(c) compromise, compound or release any obligation, with any one or more
Obligors, endorsers, or Guarantors of the Indebtedness as Lender deems
advisable, without obtaining the prior written consent of Grantor, and no such
act or failure to act shall affect Lender's rights against Grantor or
Collateral.
ALL COLLATERAL SECURED INDEBTEDNESS. All Collateral shall be security
for the Indebtedness, whether the Collateral is located at one or more offices
or branches or Lender and whether or not the office or branch where the
Indebtedness is created is aware of or relies upon the Collateral.
COLLECTION OF COLLATERAL. Lender, at Lender's option may, but need not,
collect directly from the Obligors on any of the Collateral all Income and
Proceeds or other sums of money and other property due and to become due under
the Collateral, and Grantor authorizes and directs the Obligors, if Lender
exercises such option, to pay and deliver to Lender all Income and Proceeds
and other sums of money and other property payable by the terms of the
Collateral and to accept Lender's receipt for the payments.
POWER OF ATTORNEY. Grantor irrevocably appoints Lender as Grantor's
attorney-in-fact, with full power of substitution, (a) to demand, collect,
receive, receipt for, sue and recover all Income and Proceeds and other sums
of money and other property which may now or hereafter become due, owing or
payable from the Obligors in accordance with the terms of the Collateral; (b)
to execute, sign and endorse any and all instruments, receipts, checks, drafts
and warrants issued in payment for the Collateral; (c) to settle or compromise
any and all claims arising under the Collateral, and in the place and stead of
Grantor, execute and deliver Grantor's release and acquittance for Grantor;
(d) to file any claim or claims or to take any action or Institute or take
part in any proceedings, either in Lender's own name or in the name of
Grantor, or otherwise, which in the discretion of Lender may seem to be
necessary or advisable; and (e) to execute in Grantor's name and to deliver
the Obligors on Grantor's behalf, at the time and in the manner specified by
the Collateral, any necessary instruments or documents.
PERFECTION OF SECURITY INTEREST. Upon request of Lender, Grantor will
deliver to Lender any and all of the documents evidencing or constituting the
Collateral. When applicable law provides more than one method of perfection
of Lender's security interest, Lender may choose the method(s) to be used.
Upon request of Lender, Grantor will sign and deliver any writings necessary
to perfect Lender's security interest. If the Collateral consists of
securities for which no certificate has been issued, Grantor agrees, at
Lender's option, either to request issuance of an appropriate certificate or
to execute appropriate instructions on Lender's forms instructing the issuer,
transfer agent, mutual fund company, or broker, as the case may be, to record
on its books or records, by book-entry or otherwise, Lender's security
interest in the Collateral. Grantor hereby appoints Lender as Grantor's
irrevocable attorney-in-fact for the purpose of executing any documents
necessary to perfect or to continue the security interest granted in this
Agreement.
EXPENDITURES BY LENDER. If not discharged or paid when due, Lender may (but
shall not be obligated to) discharge or pay any amounts required to be
discharged or paid by Grantor under this Agreement, including without
limitation all taxes, liens, security interests, encumbrances, and other
claims, at any time levied or placed on the Collateral. Lender also may (but
shall not be obligated to) pay all costs for insuring, maintaining and
preserving the Collateral. All such expenditures incurred or paid by Lender
for such purposes will then bear interest at the rate charged under the Note
from the date incurred or paid by Lender to the date of repayment by Grantor.
All such expenses shall become a part of the Indebtedness and, at Lender's
option, will (a) be payable on demand, (b) be added to the balance of the Note
and be apportioned among and be payable with any Installments payments to
become due during either (i) the term of any applicable insurance policy or
(ii) the remaining term of the Note, or (c) be treated as a balloon payment
which will be due and payable at the Note's maturity. This Agreement also
will secure payment of these amounts. Such right shall be in addition to all
other rights and remedies to which Lender may be entitled upon the occurrence
of an Event of Default.
LIMITATIONS ON OBLIGATIONS OF LENDER. Lender shall use ordinary reasonable
care in the physical preservation and custody of the Collateral in Lender's
possession, but shall have no other obligation to protect the Collateral or
its value. In particular, but without limitation, Lender shall have no
responsibility for (a) any depreciation in value of the Collateral or for the
collection or protection of any Income and Proceeds from the Collateral, (b)
preservation of rights against parties to the Collateral or against third
persons, (c) ascertaining any maturities, calls, conversions, exchanges,
offers, tenders, or similar matters relating to any of the Collateral, or (d)
informing Grantor about any of the above, whether or not Lender has or is
deemed to have knowledge of such matters. Except as provided above, Lender
shall have no liability for depreciation or deterioration of the Collateral.
EVENTS OF DEFAULT. Each of the following shall constitute an Event of Default
under this Agreement.
DEFAULTS OF INDEBTEDNESS. Failure of Borrower to make any payment when
due on the Indebtedness.
OTHER DEFAULTS. Failure of Borrower or Grantor to comply with or to
perform any other terms, obligation, covenant or condition contained in this
Agreement or in any of the Related Documents or failure of Borrower to comply
with or to perform any term, obligation, covenant or condition contained in
any other agreement between Lender and Borrower.
FALSE STATEMENTS. Any warranty, representation or statement made or
furnished to Lender by or on behalf of Borrower or Grantor under this
Agreement, the Note or the Related Documents is false or misleading in any
material respect, either now or at the time made or furnished.
DEFECTIVE COLLATERALIZATION. This Agreement or any of the Related
Documents ceases to be in full force and effect (including failure of any
collateral documents to create a valid and perfected security interest or
lien) at any time and for any reason.
INSOLVENCY. The dissolution or termination of Borrower or Grantor
existence as a going business, the insolvency of Borrower or Grantor, the
appointment of a receiver for any part of Borrower or Grantor's property, any
assignment for the benefit of creditors, any type of creditor workout, or the
commencement of any proceeding under any bankruptcy or insolvency laws by or
against Borrower or Grantor.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Borrower or Grantor or by
any governmental agency against the Collateral or any other collateral
securing the Indebtedness. This includes a garnishment of any of Borrower or
Grantor's deposit accounts with Lender. However, this Event of Default shall
not apply if there is a good faith dispute by Borrower or Grantor as to the
validity or reasonableness of the claim which is the basis of the creditor or
forfeiture proceeding and if Borrower or Grantor gives Lender written notice
of the creditor or forfeiture proceeding and deposits with Lender monies or a
surety bond for the creditor or forfeiture proceeding, in an amount determined
by Lender, in its sole discretion, as being an adequate reserve or bond for
the dispute.
EVENTS AFFECTING GUARANTOR. Any of the preceding events occurs with
respect to any Guarantor of any of the Indebtedness or such Guarantor dies or
becomes incompetent. Lender, at its option, may, but shall not be required
to, permit the Guarantor's estate to assume unconditionally the obligations
arising under the guaranty in a manner satisfactory to lender, and, in doing
so, cure the Event of Default.
ADVERSE CHANGE. A material adverse change occurs in Borrower's financial
condition, or Lender believes the prospect of payment or performance of the
Indebtedness is impaired.
INSECURITY. Lender, in good faith, deems itself insecure.
RIGHT TO CURE. If any default, other than a Default on Indebtedness, is
curable and if Borrower or Grantor has not been given a prior notice of a
breach of the same provision of this Agreement, if amy be cured (and no Event
of Default will have occurred) if Borrower or Grantor, after Lender sends
written notice demanding cure of such default, (a) cures the default within
fifteen (15) days; or (b), if the cure requires more than fifteen (15) days,
immediately initiates steps which Lender deems in Lender's sole discretion to
be sufficient to cure the default and thereafter continues and completes all
reasonable and necessary steps sufficient to produce compliance as soon as
reasonably practical.
RIGHTS AND REMEDIES ON DEFAULT. If an Event of Default occurs under this
Agreement, at any time thereafter,k Lender may exercise any one or more of the
following rights and remedies:
ACCELERATE INDEBTEDNESS. Declare all Indebtedness, including any
prepayment penalty which Borrower would be required to pay, immediately due
and payable without notice of any kind to Borrower or Grantor.
COLLECT THE COLLATERAL. Collect any of the Collateral and, at Lender's
option and to the extent permitted by applicable law, retain possession of the
Collateral while suing on the Indebtedness.
SELL THE COLLATERAL. Sell the Collateral, at Lender's discretion, as a
unit or in parcels, at one or more public or private sales. Unless the
Collateral is perishable or threatens to decline speedily in value or is of a
type customarily sold on a recognized market. Lender shall give or mail to
Grantor or any of them, notice at least ten (10 days in advance of the time
and place of any public sale, or of the date after which any private sale may
be made. Grantor agrees that any requirement of reasonable notice is
satisfied if Lender mails notice by ordinary mail addressed to Grantor, or any
of them, at the last address Grantor has given Lender in writing. If a public
sale is held, there shall be sufficient compliance with all requirements of
notice to the public by a single publication in any newspaper of general
circulation in the county where the Collateral is located, setting forth the
time and place of sale and a brief description of the property to be sold.
Lender may be a purchaser at any public sale.
REGISTER SECURITIES. Register any securities included in the Collateral
in Lender's name and exercise any rights normally incident to the ownership of
securities.
SELL SECURITIES. Sell any securities included in the Collateral in a
manner consistent with applicable federal and state securities laws,
notwithstanding any other provision of this or any other agreement. If,
because of restrictions under such laws, Lender is or believes it is unable to
sell the securities in an open market transaction, Grantor agrees that Lender
shall have no obligation to delay sale until the securities can be registered,
and may make a private sale to one or more persons or to a restricted group of
persons, even though such sale may result in a price that is less favorable
than might be obtained in an open market transaction, and such a sale shall be
considered commercially reasonable. If any securities held as Collateral are
"restricted securities" as defined in the Rules of the Securities and Exchange
Commission (such as Regulation D or Rule 144) or state securities departments
under state "Blue Sky" laws, or if Borrower or Grantor is an affiliate of the
issuer of the securities, Borrower and Grantor agree that neither Grantor nor
any member of Grantor family will sell or dispose of any securities of such
issuer without obtaining Lender's prior written consent.
FORECLOSURE. Maintain a judicial suit for foreclosure and sale of the
Collateral.
TRANSFER TITLE. Effect transfer of title upon sale of all or part of the
Collateral. For this purpose, Grantor irrevocably appoints Lender as its
attorney-in-fact to execute endorsements, assignments, and instruments in the
name of Grantor and each of them (if more than one) as shall be necessary or
reasonable.
OTHER RIGHTS AND REMEDIES. Have and exercise any or all of the rights
and remedies of a secured creditor under the provisions of the Uniform
Commercial Code, at law, in equity, or otherwise.
APPLICATION OF PROCEEDS. Apply any cash which is part of the Collateral,
or which is received from the collection or sale of the Collateral, to
reimbursement of any expenses, including any costs for registration of
securities, commissions incurred in connection with a sale, attorney fees as
provided below, and court costs, whether or not there is a lawsuit and
including any fees on appeal, incurred by Lender in connection with the
collection and sale of such Collateral and to the payment of the Indebtedness
of Borrower to Lender, with any excess funds to be paid to Grantor as the
interested of Grantor may appear. Borrower agrees, to the extent permitted by
law, to pay any deficiency after application of the proceeds of the Collateral
to the Indebtedness.
CUMULATIVE REMEDIES. All of Lender's rights and remedies, whether
evidenced by this Agreement or by any other writing, shall be cumulative and
may be exercised singularly or concurrently. Election by Lender to pursue any
remedy shall not exclude pursuit of any other remedy, and an election not make
expenditures or to take action to perform an obligation of Grantor under this
Agreement, after Grantor's failure to perform, shall not affect Lender's right
to declare a default and to exercise its remedies.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part
of this Agreement:
AMENDMENTS. This Agreement, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as to the
matters set forth in this Agreement. No alteration of or amendment to this
Agreement shall be effective unless given in writing and signed by the party
or parties sought to be charged or bound by the alteration or amendment.
APPLICABLE LAW. THIS AGREEMENT HAS BEEN DELIVERED TO LENDER AND ACCEPTED
BY LENDER IN THE STATE OF CALIFORNIA. IF THERE IS A LAWSUIT, BORROWER AND
GRANTOR AGREE UPON LENDER'S REQUEST TO SUBMIT TO THE JURISDICTION OF THE
COURTS OF SAN MATEO COUNTY, THE STATE OF CALIFORNIA. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA.
ATTORNEYS' FEES; EXPENSES. Borrower and Grantor agree to pay upon demand
all of Lender's costs and expenses, including attorneys' fees and Lender's
legal expenses, incurred in connection with the enforcement of this Agreement.
Lender may pay someone else to help enforce this Agreement, and Borrower and
Grantor shall pay the costs and expenses of such enforcement. Costs and
expense include Lender's attorneys' fees and legal expenses whether or not
there is a lawsuit, including attorneys' fees and legal expenses for
bankruptcy proceedings (and including efforts to modify or vacate any
automatic stay or injunction), appeals, and any anticipated post-judgment
collection services. Borrower and Grantor also shall pay all court costs and
such additional fees as may be directed by the court.
CAPTION HEADINGS. Caption headings in this Agreement are for convenience
purposes only and are not to be used to interpret or define the provisions of
this Agreement.
MULTIPLE PARTIES; CORPORATE AUTHORITY. All obligations of Borrower and
Grantor under this Agreement shall be joint and several, and all references to
Borrower shall mean each and every Borrower, and all references to Grantor
shall mean each and every Grantor. This means that each of the persons
signing below is responsible for all obligations in this Agreement.
NOTICES. All notices required to be given under this Agreement shall be
given in writing, may be sent by telefacsimile, and shall be effective when
actually delivered or when deposited with a nationally recognized overnight
courier or deposited in the United States mail, first class, postage prepaid,
addressed to the party to whom the notice is to be given at the address shown
above. Any party may change its address for notices under this Agreement by
giving formal written notice to the other parties, specifying that the purpose
of the notice is to change the party's addresses. To the extent permitted by
applicable law, if there is more than one Borrower or Grantor, notice to any
Borrower or Grantor will constitute notice to all Borrower and Grantors. For
notice purposes, Borrower and Grantor will keep Lender informed at all times
of Borrower and Grantor's current address(es).
SEVERABILITY. If a court of competent jurisdiction finds any provision
of this Agreement to be invalid or unenforceable as to any person or
circumstance, such finding shall not render that provision invalid or
unenforceable as to any other persons or circumstances. If feasible, any such
offending provision shall be deemed to be modified to be within the limits of
enforceability or validity; however, if the offending provision cannot be so
modified, it shall be stricken and all other provisions of this Agreement in
all other respects shall remain valid and enforceable.
SUCCESSOR INTERESTS. Subject to the limitations set forth above on
transfer of the Collateral, this Agreement shall be binding upon and inure to
the benefit of the parties, their successors and assigns.
WAIVER. Lender shall not be deemed to have waived any rights under this
Agreement unless such waiver is given in writing and signed by Lender. No
delay or omission on the part of Lender in exercising any right shall operate
as a waiver of such right or any other right. A waiver by Lender of a
provision of this Agreement shall not prejudice or constitute a waiver of
Lender's right otherwise to demand strict compliance with that provision or
any other provision of this Agreement. No prior waiver by Lender, nor any
course of dealing between Lender and Grantor, shall constitute a waiver of any
of Lender's rights or of any of Grantor's obligations as to any future
transactions. Whenever the consent of Lender is required under this
Agreement, the granting of such consent by Lender in any instance shall not
constitute continuing consent to subsequent instances where such consent is
required and in all cases such consent may be granted or withheld in the sole
discretion of Lender.
BORROWER AND GRANTOR ACKNOWLEDGE HAVING READ ALL THE PROVISIONS OF THIS PLEDGE
AND SECURITY, AND BORROWER AND GRANTOR AGREE TO ITS TERMS. THIS AGREEMENT IS
DATED APRIL 2, 1997.
BORROWER:
PENN OCTANE CORPORATION
BY: /S/ JEROME B. RICHTER
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JEROME B. RICHTER, PRESIDENT/ASSISTANT SECURITY
GRANTOR:
/S/ JEROME B. RICHTER
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JEROME B. RICHTER