RELEASE AND SETTLEMENT AGREEMENT
This Release and Settlement Agreement (the "Agreement") is entered into
effective as of April 28, 2004 (the "Effective Date") by and between Chiste
Corporation, f/k/a Dyna-Cam Engine Corporation a Nevada corporation (the
"Company") and The Aviary, LLC, an Arizona limited liability company ("Xxx
Xxxxxx").
RECITALS
A. The Aviary has acquired a judgment and all claims against the Company
originally owned by GE Capital Colonial Pacific Leasing ("GE").
B. The Company granted GE a conversion right with the price set by third party
funding.
C. The Company and The Aviary desire to satisfy the judgment and the claims by a
conversion of the Company's liability into Company common shares.
AGREEMENTS
Now, Therefore, in consideration of the above recitals, the following
representations, warranties, covenants and conditions, and other good and
valuable consideration, the receipt of which is acknowledged, the parties agree
as follows:
1. Agreement on amount owed. The Company and The Aviary agree that the amount
owed in full settlement of any liability is $24,500 (the "Aviary Claim").
2. Agreement to convert. The Company and The Aviary agree that upon the
establishment of a conversion price of not more than $.10 per share (post
reverse split), the Company may automatically convert The Aviary Claim into
shares of the Company's common stock (the "Shares").
3. Release of all claims. The Aviary and the Company hereby release and agree to
indemnify, defend and hold harmless each other and each of their officers and
directors, employees, shareholders, members, consultants, attorneys,
accountants, other professional, insurers, agents and all other related
entities, including, but not limited to, assigns, controlling corporations,
subsidiaries or other affiliates (jointly, the "Related Parties") from all
claims, losses, actions, damages, liabilities and expenses, including attorney's
fees and costs arising from, related to or in connection with the actions and
omissions of The Aviary and/or the Company and their successors and assigns that
occur, or with respect to omissions, fail to occur, after the date hereof or
from any claims made by any person through such party related to the terms and
performance of this Agreement.
4. Representations and Warranties of the Company. The Company represents and
warrants that:
(a) on the date of this Agreement, its has all necessary authority to execute
this Agreement;
(b) there is no claim, action, suit or other proceeding pending, threatened or
known, which, if decided adversely, would interfere with the consummation of the
transaction contemplated hereby; and
(c) no approval or consent of any governmental authority or third party is
required for the conversion of the Aviary Claim as contemplated by this
Agreement, and there is no legal or other restriction, which will prevent the
The Aviary from owning or voting the Shares upon the consummation of the
transaction contemplated hereby.
5. Representations of The Aviary. The Aviary represents to the Company that:
(a) on the date of this Agreement, its has all necessary authority to execute
this Agreement;
(b) the delivery of any documents in accordance with this Agreement will vest
good and marketable title to such documents, unencumbered by any liens, pledges
or other security interests;
(c) there is no claim, action, suit or other proceeding pending, threatened or
known against The Aviary, which, if decided adversely, would interfere with the
consummation of the transaction contemplated hereby; and
(d) no approval or consent of any governmental authority or third party is
required for the conversion of the Aviary Claim as contemplated by this
Agreement, and there is no legal or other restriction, which will prevent the
The Aviary from owning or voting the Shares upon the consummation of the
transaction contemplated hereby.
6. Restriction on Transfer. The Aviary acknowledges that:
(a) the Shares are not being registered under the Securities Act of 1933 or
relevant state securities laws but are being offered and sold pursuant to
exemptions from such laws;
(b) the Shares are being purchased for The Aviary's own account and for
investment and without the intention of reselling or redistributing the same,
that The Aviary has made no agreement with others regarding any of the Shares
and that its financial condition is such that it is unlikely that it will be
necessary to dispose of any of the Shares in the foreseeable future.
7. Delivery and Cooperation. If any further documentation is required, The
Aviary will immediately respond to any of the Company's requirements for any
additional documentation.
8. Miscellaneous.
(a) Successors and Assigns. This Agreement shall be binding upon the Company and
The Aviary and their respective successors and assigns.
(b) Survival of Covenants and Representations. All covenants, representations
and warranties made by The Aviary or the Company herein will survive the
delivery of this Agreement and the Shares.
(c) Severability. Should any part of this Agreement for any reason be declared
invalid or unenforceable, such decision will not affect the validity or
enforceability of any remaining portion, which remaining portion will remain in
force and effect as if this Agreement had been executed with the invalid portion
thereof eliminated, and it is hereby declared as the intention of the parties
hereto that the parties would have executed the remaining portion of this
Agreement without including therein any such part or portion which may, for any
reason, be hereafter declared invalid or unenforceable.
(d) Governing Law and Venue. This Agreement shall be governed by and construed
in accordance with the laws of the State of Arizona, without reference to choice
of law principles. The parties agree that the state and federal courts sitting
in Maricopa County, Arizona shall have sole jurisdiction and venue of any action
related to this Agreement.
(e) Captions. The descriptive headings of the various Sections or parts of this
Agreement are for convenience only and shall not affect the meaning or
construction of any of the provisions hereof.
IN WITNESS WHEREOF, this Agreement has been executed as of the date first
written above.
Chiste Corporation. The Aviary, LLC.
\s\ Xxxxxxx X. Xxxxxxxx \s\ Xxxxxxxx X. Xxxxxxxxxxxx
By: Xxxxxxx X. Xxxxxxxx By: Xxxxxxxx X. Xxxxxxxxxxxx
Its: President Its: Managing Member
Date: April 28, 2004 Date: April 28, 2004
