exv10w1






Exhibit 10.1




Factoring Agreement




     This Agreement, dated November 19, 2008 (the “Effective Date”), is between Cistera Networks,
Inc. with offices at 6509 Windcrest Drive, Suite 160, Plano, Texas 75024 (hereinafter called
“Seller”), and Allied Capital Partners, LP., with offices at 5151 Belt Line Rd., Suite 500, Dallas,
Texas 75254 (hereinafter called “Allied”).



     Allied and Seller are parties to a factoring agreement and agree to amend and replace such
factoring agreement with this Factoring Agreement, as of the Effective Date; and the Seller desires
to sell its Accounts to Allied from and after the Effective Date on the following terms, conditions
and. provisions; therefore, for value received by the parties hereto and in consideration of the
mutual agreements set forth below and continued factoring of Accounts, the parties agree as
follows:




	 	1.	 	Definitions. As used in this Agreement and all other documents or
instruments executed and delivered in connection with this Agreement:






	 	1.1	 	The capitalized words used herein (singular, plural or in any
tense) shall have the same definitions as those set forth in the Uniform
Commercial Code as adopted by the State of Texas, effective July 1, 2001, as
amended.
	 
	 	1.2	 	“Without Recourse” shall mean the Seller of Accounts is not
obligated to pay or repurchase an Account sold to Allied unless Seller breaches
its warranties or representations concerning such Account. “With
Recourse" or “Recourse” means Seller shall pay or repurchase Accounts
acquired by Allied that are not paid according to the terms of the invoice.
	 
	 	1.3	 	“Face Amount” shall mean the total amount of each Account, including taxes,
delivery charges, etc.
	 
	 	1.4	 	An Account shall be deemed to be “Disputed” if (i) the
Account Debtor disputes an Account, including the amount owing, timely delivery
of the goods, conformity of the goods or services to the order, or any other
aspect of the sale giving rise to the Account for any reason whatsoever, even if
the dispute has no merit, is in bad faith or is unreasonable, (ii) the Account
contains mistakes, is not correct or was sent in error, or (iii) all of the
following three conditions exist: (a) the Account is not paid within 90 days of
its invoice date, (b) the Account Debtor will not communicate the reason for
non-payment to Allied, and (c) the Seller fails to produce, within such time
period, good and sufficient evidence that nonpayment is due to the Account
Debtor’s financial inability to pay, the pendency of a bankruptcy proceeding by
or against the Account Debtor or some reason other than a dispute of the type
referred to above.
	 
	 	1.5	 	“New Commitment” shall mean any written commitment Seller may
receive during the Term of this Agreement from a third party to provide
financing or factoring to Seller, which commitment Seller intends to accept.
	 
	 	1.6	 	“Discount” shall mean the sum of the following, subject to
adjustment as set forth below: (i) .875% of the Face Amount of each Account sold
to Allied under this Agreement for the Initial Payment Period (as defined below)
and (ii) an additional amount of .058% for each 1 day period (or portion
thereof) that the Account remains unpaid after the Initial Payment Period, until
the earlier of (a) the date it is paid in full or repurchased by the Seller in
accordance with this Agreement, or (b) if the Account is not one that the Seller
is or becomes obligated to pay or repurchase, 150 days from the date of the
invoice of the Account.
	 
	 	1.7	 	“Initial Payment Period” shall mean the period of 15 days from
the date Allied has purchased an Account under this Agreement.
	 
	 	1.8	 	“Purchase Price” shall mean the Face Amount of the Account, less the Discount,
	 
	 	1.9	 	“Seller’s Business” is VOIP (Telephony) Application Hardware/Software.
	 
	 	1.10	 	“Maintenance Accounts” are Seller’s invoices billing solely for Seller’s “annual
maintenance" services.





     Other words used herein, which are capitalized, shall have the definitions prescribed
herein. Variations of words defined herein shall have the same meaning as the defined terms.




	 	2.	 	Offer to Sell: Seller may, at its option, offer to sell, assign and transfer to
Allied its existing and hereafter arising,





	 	 	 
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	 	 	 	acquired or created Accounts. Any such offer shall be made on an assignment form
prescribed by Allied (the “Schedule”) sent to Allied at its above stated office and
accompanied by a copy of (i) each invoice, (ii) the bill of lading, shipping documents
or other proof of delivery, (iii) the contract or purchase order (or purchase order
number which corresponds with the invoice), and (iv) such other documentation as may
be requested by Allied for each Account listed on the Schedule.
	 
	 	3.	 	Acceptance of Offer. Allied may accept Seller’s offer to sell
Accounts at its above stated office by either (i) paying the Purchase Price (less the
Reserve, defined below) with respect to all Accounts appearing on the Schedule
submitted, to Allied, or (ii) by oral or written notice to Seller identifying the
Accounts which appear on the Schedule that Allied is unwilling to purchase and paying
the Purchase Price (less the Reserve) for the remaining Accounts. Allied shall not be
obligated to purchase each Account that Seller offers to sell to Allied and reserves
the right to accept or reject Accounts in Allied’s sole discretion.
	 
	 	4.	 	Reserve. Allied may, at its sole option and discretion, defer making
payment to Seller of a portion of the Purchase Price payable for (i) all Maintenance
Accounts purchased under this Agreement up to an aggregate amount equal to 50% of the
Face Amount of all Maintenance Accounts and (ii) for all other Accounts purchased under
this Agreement up to an aggregate amount equal to 14.125% of the Face Amount of all
such Accounts ((i) and (ii) shall be called the “Reserve”). The Reserve shall not bear
interest. The Reserve for an Account purchased under this Agreement is payable by
Allied to Seller, on request of Seller (limited to one request per week), after the
earlier of (i) the date the Account is paid to Allied, or (ii) 150 days from the date
of the invoice of the Account, unless the Reserve is increased as herein provided or
the Account becomes one that the Seller is obligated to repurchase or pay. An Account
is deemed paid to Allied only when paid in collected funds, Allied is entitled to
increase the Reserve without Sellers consent, if, (i) Seller breaches any
representation, warranty, term, condition or provision of this Agreement, (ii) in
Allied’s reasonable judgment it is necessary to increase the Reserve to protect Allied
from (a) losses due to a Dispute (even if not valid or made in good faith) of any
Account, returns or other contingencies, or (b) Seller’s unsatisfied obligations and
liabilities. If any Account owned by Allied is not paid within 75 days of the
date of the invoice related thereto, Allied may presume that the Account is Disputed
and may increase the Reserve by an amount equal to that portion of the Purchase Price
previously paid by Allied plus the Discount. In the event Allied notifies Seller that
it has increased the Reserve, Seller shall immediately refund to Allied a portion of
the Purchase Price previously paid by Allied for the purchase of Seller’s Accounts
which is equal to the increased amount of the Reserve. After the Term of this Agreement
(defined below) has expired and Seller has paid its liabilities to Allied and fulfilled
its obligations arising hereunder, Allied shall pay the balance of the Purchase Price
payable for all Accounts purchased hereunder which constitutes unpaid Reserve (if any)
to Seller. The purpose of the Reserve is to provide Allied with additional Collateral
to secure payment of Seller’s liabilities and performance of Seller’s obligations
arising under this Agreement. Allied shall be entitled to offset or recoup from the
Reserve the amount of any liabilities owing by Seller to Allied, whether presently
existing or hereafter arising, and whether or not arising under this Agreement,
including, but not limited to, Seller’s obligation to repurchase Accounts or to pay
Accounts pursuant to the provisions of this Agreement. Seller acknowledges that the
Reserve is not a cash deposit or segregated fund, but represents the balance of
Allied’s liability to Seller for payment of the Purchase Price, subject to its right of
offset or recoupment and its security interest in the Reserve.
	 
	 	5.	 	Seller’s Repurchase Obligation. In addition to all other rights of
Allied hereunder, Allied may require that Seller repurchase, by payment of the
Repurchase Price together with any other unpaid fees then owing to Allied, any Account
that has been purchased by Allied: (i) for which Seller has breached its warranty or
representation concerning such Account as set forth herein; (ii) with Recourse; or
(iii) if Seller defaults in the payment or performance of its liabilities and
obligations to Allied. If any Account purchased by Allied is one that Seller is or
becomes obligated to pay or repurchase under this Agreement and is not paid within the
Initial Payment Period, Allied, at Allied’s sole discretion, may elect to: (i) retain
ownership of the Account until the earlier of either the date the Account is paid by
the Account Debtor or 90 days after the invoice date of the Account, or (ii) at any
time require Seller to repurchase the Account at the Repurchase Price. The purchase
price for any Account, which Seller is required to repurchase from Allied under this
Agreement is the Face Amount of the Account (the “Repurchase Price”). If Seller ever
becomes obligated to repurchase an Account from Allied, it shall not become the owner
of such Account until it has paid the Repurchase Price to Allied.
	 
	 	6.	 	Minimum Sales. If Seller fails to offer to sell and assign to Allied a
monthly minimum of $0 in Accounts which are acceptable to Allied, Seller will pay to
Allied the difference between the Discount on all Accounts purchased by Allied from
Seller during the month and $0.
	 
	 	7.	 	Recourse. Except as may be specifically agreed to in writing by the
parties to this Agreement, all Accounts sold and purchased hereunder are sold With
Recourse on Seller.





	 	 	 
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	 	8.	 	Account Warranties. Seller warrants, represents, covenants and agrees that
the presently existing and hereafter arising, acquired or created Accounts of Seller
sold to Allied or in which Allied obtains a security interest: (i) are not and will not
be Disputed; (ii) are owing pursuant to Seller’s contract with the Account Debtor and
such contract will not be amended without the written consent of Allied; (iii) will be
paid when due (unless the Account was purchased Without Recourse); (iv) are owned solely
by Seller, which has the power to transfer the Accounts, and that its title to the
Accounts is free of all adverse claims, liens, security interests and restrictions on
transfer, encumbrance or pledge, except as created by this Agreement; (v) set forth the
correct and complete terms of sale, which have not been and will not be altered or
amended; (vi) are valid and owing, and all goods and services giving rise to the
Accounts have been provided or delivered in accordance with Seller’s agreement with the
Account Debtor, or in the case of a Maintenance Account Seller has committed itself to
provide a year of maintenance and intends to do so; (vii) will not be paid by a
preference payment or fraudulent transfer (as defined by the Bankruptcy Code or the
relevant law of any state); (viii) are not and shall not become subject to a defense or
claim in recoupment or setoff that can be asserted against Allied; (ix) are not owing by
Account Debtors that were subject to insolvency or bankruptcy proceedings concerning
which Seller had any notice as of the date the Account is sold, or in which Seller owns
an interest of any kind; (x) shall be reflected on Seller’s books and records as having
been transferred, sold and conveyed to Allied if Allied purchases such Accounts; and
(xi) shall be evidenced by an invoice which has been issued to and received by the
Account Debtor, and each such invoice shall have printed on the face thereof a
statement, approved by Allied, notifying the Account Debtor that the invoice has been
sold and assigned to Allied and is payable only to Allied (or jointly to Allied and
Seller) at the address designated in such notice and that, if the Account is paid, the
Account will be paid by the Account Debtor in accordance with such instructions. The
warranties and representations set forth herein shall apply as of the date each Account
is sold hereunder and shall continue with respect to each Account until each such
Account is paid. If Seller breaches any warranty, covenant or agreement set forth above,
Seller shall repurchase the applicable Account for the Repurchase Price, or pay the
Account; such payment or repurchase shall cure Seller’s default for breach of warranty
with respect to such Account. All warranties and representations of Seller under this
Agreement are continuing warranties and representations.
	 
	 	9.	 	Other Warranties and Covenants of Seller. Seller further warrants,
represents, covenants and agrees that as of the Effective Date and at all times during
the Term of this Agreement: (i) Seller is and shall be able to pay its debts as they
become due; (ii) Seller’s (a) principal executive office is located in the State of
Texas, (b) Jurisdiction of Organization or state of incorporation or charter is and
shall remain the State of Nevada and (c) exact legal name is and shall remain as set
forth in the first paragraph of this Agreement, and Seller does not and will not operate
under any trade name or assumed name except: CNH Holdings Company; (iii) Allied is and
shall remain Seller’s sole factor, and Seller will not sell its Accounts to any other
person, firm or corporation during the Term; (iv) Seller shall not, without the prior
written consent of Allied in each instance, (a) grant any extension of time for payment
or modify the payment terms of any Accounts owned by Seller or any other Collateral
which includes a monetary obligation, (b) compromise or settle any Accounts owned by
Seller or any such other Collateral for less than the full amount thereof, (c) release
in whole or in part any Account Debtor or other person liable for payment of Accounts
owned by Seller or any other such Collateral, or (d) grant any credits, discounts,
allowances, deductions, return authorizations or the like with respect to any Accounts
owned by Seller or any such other Collateral; (v) before sending any invoice to an
Account Debtor with respect to an Account that has been sold to Allied, Seller shall
mark the same with a notice of assignment as may be required by Allied; (vi) Seller
maintains and shall continue to maintain complete and accurate business records of the
type normally maintained by businesses similar to Seller, and all financial records,
statements, books and other documents shall be made available for Allied’s inspection
and shall be true and accurate in all respects; (vii) the Accounts and Collateral are
and shall at all times remain free and clear of liens, claims and encumbrances other
than the security interests granted to Allied hereunder; (viii) the Accounts assigned to
Allied by Seller shall become the sole property of Allied and Seller’s sale and
assignment of accounts shall pass legal and equitable title to Allied free and clear of
liens, claims and encumbrances; (ix) Seller insures and shall continue to insure its
business and its assets in a manner customary for businesses of the type of Seller’s
business, and Seller will insure its inventory and goods in transit for their full
value; (x) Seller will not sell, encumber or move the Collateral or a significant
portion of its other assets (except the sale of inventory in the ordinary course of its
business), without the prior written consent of Allied; (xi) Seller is and shall remain
in compliance with all federal, state and local tax laws, rules and regulations and
shall furnish Allied with evidence thereof on demand; (xii) Seller will preserve its
present legal formation and existence and not, in one transaction or series of related
transactions, merge into or consolidate with any other entity, change the form of its
legal existence, or sell all or substantially all of its assets; (xiii) Seller will not
change the state where it is located, will not change the state where it is incorporated
or organized and will not change its organizational documents, and will not change its
name without providing Allied with at least 30 days prior written notice; (xiv) Seller
shall not realize sales or income from any business activity (except an occasional sale
of a capital asset) other than the business activity that is Seller’s Business; and (xv)
Seller shall pay all federal employee withholding taxes and the sales taxes due on all





	 	 	 
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	 	 	 	sales which result in accounts sold to Allied or in which Allied has a security
interest. Seller also agrees that, if an Account purchased by Allied authorizes the
Account Debtor to discount the Face Amount of the Account for prompt payment, the
Seller shall pay to Allied an amount equal to the discount taken by the Account Debtor
(even if not properly taken) and Allied is authorized to offset such discount against
the Reserve. All warranties and representations of Seller under this Agreement are
continuing warranties and representations.
	 
	 	10.	 	Notice to Allied. Seller shall immediately notify Allied of (i) a Dispute
of any Account sold or encumbered under this Agreement, (ii) any other breach of
warranty or default in Seller’s covenants and agreements set forth herein, (iii)
Seller’s discovery of evidence of Insolvency of an. Account Debtor, and (iv) the filing
and service of a lawsuit or adversary proceeding related to an Account purchased by
Allied or the payment related thereto (including, but not limited to, preference or
fraudulent transfer litigation), (v) any claim of a lien in the Collateral of Allied
(including federal tax liens), (vi) any change in ownership of Seller, and (vii)
Seller’s failure to pay any tax it may owe at any time for any reason, when due.
	 
	 	11.	 	Security Interest in Collateral. To secure payment and performance of all
of Seller‘s liabilities and obligations to Allied, including without
limitation all amounts owing to Allied hereunder or damages arising due to Seller’s
breach of the terms, warranties, representations, or conditions of this Agreement or any
other agreement by and between Allied and Seller, whether now or hereafter owing to
Allied, Seller grants to Allied a Security Interest in all of its presently existing and
hereafter arising, acquired or created: Accounts, Chattel Paper, General Intangibles,
Supporting Obligations, Equipment, Inventory, Instruments (including promissory notes),
Documents, Deposit Accounts, Financial Assets, Securities, Letter- of- credit Rights and
all amounts owing to Seller hereunder, including the Purchase Price and Reserve, and all
Proceeds thereof (collectively the “Collateral”). Seller agrees as follows with respect
to the aforementioned Collateral: (i) Allied shall have the right at any time and in its
sole discretion to enforce Seller’s rights against the Account Debtors and obligors;
(ii) Seller will not pledge, hypothecate or encumber the Collateral during the Term of
this Agreement and while it is indebted or otherwise obligated to Allied; (iii) Allied
may exercise all rights and remedies of an unpaid seller with respect to Accounts,
Supporting Obligations, and Chattel Paper constituting Collateral hereunder, including
the right of replevin, reclamation and stoppage in transit; (iv) Seller has the risk of
loss of the Collateral; and (v) Allied shall have no duty to collect the Collateral or
preserve or enforce any rights relating to the Collateral.
	 
	 	12.	 	Inspection of Records. Any agent of Allied may audit, check, inspect,
make abstracts from or copies of the books, records, receipts, correspondence,
memoranda, and other papers or data relating to the Collateral, Accounts purchased under
this Agreement, the obligations of Seller to Allied and any other transactions between
Seller and Allied or between Seller and an Account Debtor, or generally audit all of
Seller’s books and records at Seller’s place of business upon Allied’s demand therefor.
Seller shall at all times maintain a complete set of books and records containing
up-to-date posting of all of its cash and accrual transactions of any nature.
	 
	 	13.	 	Property of Allied/Proceeds and Returned Goods Held in Trust. After
Allied has purchased an Account from Seller, (i) the Account and all proceeds thereof
shall become the sole and absolute property of Allied, (ii) Allied may at any time in
its sole discretion, whether prior to or following the occasion of default hereunder,
notify all Account Debtors of Accounts purchased by Allied that such Accounts have been
sold and assigned to Allied and are payable only to Allied at the address provided by
Allied, (iii) Seller shall immediately make proper entries on its books and records
disclosing the absolute sale of such Accounts to Allied, (iv) Seller shall not hinder,
delay or interfere with payment of Accounts and shall cooperate with and assist Allied
in connection with Allied’s handling, collection or other dealings with the Accounts and
Account Debtors, including, without limitation, assisting Allied in obtaining written
confirmation, statements or agreements from Account Debtors which specify or confirm any
information requested by Allied with respect to the Accounts, and (v) Seller shall hold
any check, commercial paper, notes, cash or other forms of payment of any Account sold
to Allied or (if Seller is in default of its liabilities or obligations to Allied) in
which Allied has a security interest which may come into Seller’s possession or under
its control (even if such payment is payable to Seller) in trust for the benefit
of Allied and shall immediately turn over and deliver to Allied all such payments, in
kind, and in. the exact form received. Seller shall endorse any instrument or other form
of payment which is payable to Seller, but which is paid on an Account sold to Allied
hereunder. In the event of the return or non-acceptance, in whole or in part, of
property, the sale of which resulted in Accounts which were sold and assigned to Allied,
the Seller shall hold such property in trust for Allied, give to Allied
immediate notice of such return or non-acceptance, immediately turn over such property
to the custody and control of Allied, and legibly mark such merchandise as the property
of Allied; thereafter, upon demand, Seller shall repurchase such property from and pay
to Allied the invoice price thereof, and upon such payment the Seller shall be entitled
to the redelivery of such property. If Seller fails to make such purchase and payment
immediately upon demand, it shall be in default hereunder and Allied shall be entitled
(in addition to its other remedies) to sell such property at public or private sale and
to charge Seller’s account with the difference between the invoice price of such
property and the amount





	 	 	 
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	 	 	 	realized upon the sale, plus all charges, fees and commissions upon such sale. Allied
may become a bidder and purchaser at any such sale.
	 
	 	14.	 	Breach of Trust Fee. Seller’s strict adherence to the provisions of
Paragraph 13 is essential in order for Allied to purchase Seller’s Accounts at the
Discount and on the other terms set forth in this Agreement. Seller agrees that the
provisions of such paragraph are of the essence of this Agreement and agrees to
implement policies and procedures to ensure its consistent and prompt performance of its
obligations hereunder. In the event Seller breaches its obligations under such paragraph
for reasons other than excusable neglect (which shall be determined solely by Allied in
its sole judgment and discretion), (i) Allied may immediately terminate this Agreement
and charge the Termination Fee, as defined in Paragraph 17 below, (ii) Seller shall pay
to Allied a fee equal to 15% of the amount of any payment or other property which was
received by Seller as property of Allied in addition to all other amounts owing to
Allied, and (iii) Seller, at Allied’s option, shall immediately repurchase all Accounts
acquired by Allied which are then owing by the Account Debtors by payment of the
Repurchase Price to Allied, even if such Accounts were purchased Without Recourse.
	 
	 	15.	 	Power of Attorney. Seller makes, constitutes and appoints Allied and it’s
Chief Executive Officer and President as Seller’s true and lawful attorney-in-fact with
power of substitution and with power and authority to: (i) endorse the name of Seller or
of any of its officers or agents upon any notes, checks, drafts, money orders, or other
instruments of payment; (ii) sign and endorse the name of Seller or any of its agents
upon any invoice, freight or express bill, bill of’ lading, storage or warehouse
receipt, drafts against Account Debtors, assignments, verifications, demands under
letters of credit and notices in connection with Accounts acquired by Allied or which
are Collateral under this Agreement, and any instrument or document relating thereto or
to Seller’s tights therein; (iii) execute any agreement compromising and settling any
Dispute or collection of any Account owned by Allied or owned by Seller, if Seller is in
default hereunder, on terms and conditions acceptable to Allied in its sole discretion;
(iv) bring suit in the name of Seller or Allied to collect any Account; (v) amend the
terms of any Account owned by Allied or owned by Seller, if Seller is in default
hereunder; (vi) execute any financing statements (including amendments) to perfect
Allied’s Security Interest granted by this Agreement; (vii) execute and file in the name
of Seller or Allied, or both, mechanics’ liens, mineral liens and all related notices
and claims under any payment bond, statue, or contract, in connection with goods or
services provided by Seller for the improvement of realty; (viii) notify any Account
Debtor obligated with respect to any Account purchased by Allied or (if Seller is in
default of its liabilities or obligations to Allied) in which Allied has a security
interest that the underlying Account has been assigned to Allied by Seller and that
payment thereof is to be made to the order of and directly and solely to Allied; (ix)
communicate directly with Account Debtors to verify the amount and validity of any
Account and to collect payment; (x) if Allied (in its sole and absolute discretion)
declares Seller to be in default hereunder, give ‘written notice to such office and
officials of the United States Post Office to effect such change or changes of address
that all mail addressed to Seller may be delivered directly to Allied; and (xi) exercise
reclamation rights of Seller and to file a claim in a bankruptcy proceeding of an
Account Debtor (which Seller requests Allied to do). Seller’s attorney-in-fact is hereby
granted full power to do all necessary things to accomplish the above as fully and
effectively as could Seller. Seller ratifies all that the attorney-in-fact shall
lawfully do or cause to be done by virtue hereof. The power of attorney shall be
irrevocable for the Term of this Agreement and until Allied has irrevocably received all
payments to which Allied is or may be entitled from Client and Account Debtors on
Accounts purchased by Allied or in which it has a security interest.
	 
	 	16.	 	Default. Except as specifically provided herein, the following events
shall constitute a default under this Agreement: (i) Seller fails to pay any amounts
owing hereunder or fails to fulfill its other obligations under this Agreement or fails
to make payments or fulfill obligations under any other agreements that it may have with
Allied,
	 
	 	 	 	(ii) Seller’s warranties or representations set forth herein prove to be untrue or
false in any respect, howsoever minor,
	 
	 	 	 	(iii) Seller or any guarantor of the payment and performance of obligations hereunder
becomes subject to any debtor-relief proceedings, (iv) any such guarantor fails to
perform or observe any of such guarantor’s obligations to Allied or to notify Allied of
its intention to rescind, modify, terminate, or revoke any guaranty, or any such
guaranty ceases to be in full force and effect for any reason whatsoever, or (v)
Allied, for any reason, in. good faith, deems itself insecure with respect to the
prospect of repayment or performance of the obligations of Seller. If Client does not
pay or perform its liabilities or obligations hereunder or any other event of default
exists (in Allied’s sole determination), Allied may, without notice (except as required
by Texas law), (i) enforce and foreclose its Security Interest in the Collateral in
accordance with its rights under the Texas Uniform Commercial Code, (ii) notify any
Account Debtor to make payment of any Account directly to Allied, regardless of whether
such Accounts have been purchased by Allied or Allied has a Security Interest therein,
(iii) initiate electronic debit or credit entries through the ACH system to Seller’s
bank accounts or other deposit account maintained by Seller, wherever located, to
collect all amounts owing to Allied by Seller, and (iv) exercise any one or all of its
other rights and remedies set forth in this Agreement.





	 	 	 
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	 	17.	 	Term. Unless sooner terminated by either of the parties hereto, the
initial Term of this Agreement shall commence on the Effective Date and continue for two
years, and this Agreement shall automatically renew for additional one year renewal
Terms at the end of the initial Term and each renewal Term unless either party hereto
gives written notice to the other at least 30 days prior to the end of the original Term
or any renewal Term that the Term is not renewed. (Such initial Term and renewal Term is
the "Term.”) Allied may terminate this Agreement at any time (i) by giving
written notice to Seller if the Seller is in default under this Agreement, or (ii) by
giving 30 days advance written notice to Seller. Provided Seller is not in default
hereunder, Seller may terminate this Agreement at any time by giving 90 days prior
written notice to Allied, accompanied by the Termination Fee. A fee of 4% of $500,000
(the facility amount in Buyer’s proposal, accepted by Seller, November 17, 2008) shall
be paid by Seller td Allied if this Agreement is terminated by Seller (except as
hereinafter provided) or if this Agreement is terminated by Allied due to Seller’s
breach of any warranty, term, condition or provision of this Agreement (the “Termination
Fee”); provided, however, the Termination Fee is waived if Seller is not in default and
obtains a bank loan, secured by its Accounts, and pays all of its obligations to Allied
from the loan proceeds. The Termination Fee is not a penalty, but is a reasonable
estimate of the damages Allied is likely to suffer as a result of termination, and
constitutes agreed liquidated damages. All obligations arising under this Agreement
shall continue in full force and effect with respect to all transactions entered into
and obligations, whether absolute or contingent, existing or incurred before the end of
the Term.
	 
	 	18.	 	Right of First Offer. Seller hereby agrees that in the event Seller
receives a New Commitment, Seller will (i) advise Allied in writing of the identity of
the offeror of the New Commitment and the complete terms of the New Commitment, and (ii)
accept Allied’s commitment if Allied elects, in its sole discretion, to offer to modify
this Agreement to contain the same terms as the New Commitment,
	 
	 	19.	 	Miscellaneous. The parties agree to the following additional terms:






	 	19.1	 	This Agreement shall be binding upon and inure to the benefit of
both parties and their legal representatives, successors and assigns. Allied is
currently entitled to purchase Accounts from Seller under a factoring agreement
(the “Existing Factoring Agreement”). This Agreement amends and renews the
Existing Factoring Agreement as of the Effective Date. All, purchases of Accounts,
guarantees, security interests and financing statements that exist under the
Existing Agreement (or its predecessor) shall remain in full force and effect,
without offset, recoupment, defense or counterclaim by Seller.
	 
	 	19.2	 	This Agreement shall be construed and enforced in accordance
with and governed by the laws of the State of Texas. Venue for the institution of
any legal proceeding shall be in Dallas County, Texas. Each sale of an Account to
Allied under this Agreement is an “Account Purchase Transaction” as defined by
section 306.001(1) of the Texas Finance Code and is subject to such subtitle of
the Texas Finance Code.
	 
	 	I9.3 	 	If any term of this Agreement is held to be illegal, invalid, or
unenforceable, such determination shall not affect the validity of the remaining
terms. Time is of the essence of this Agreement.
	 
	 	19.4	 	Seller authorizes Allied to file and re-file Financing Statements
at any time describing the above described Collateral (and all amendments thereto,
assignments, and renewals thereof, including continuation statements) any place or
places that Allied may deem necessary or appropriate, with or without the
signature of Seller thereon, and all financing statements already fled by Allied
are hereby ratified, authorized and approved.
	 
	 	19.5	 	All notices under this Agreement shall be in writing and
delivered personally, faxed or mailed by certified mail, return receipt requested,
postage prepaid. The parties shall use the addresses or fax number set forth below
for all notices, unless the party giving the notice has received written notice
from the recipient of a change of address or fax number at least 10 days prior to
the notice given under this Agreement.





Allied Capital Partners, L.P.

PO Box 676649

Dallas, TX 75267-6649

Hand Delivery or overnight delivery only:

5151 Beltline Road, Ste. 500

Dallas, TX 75254

Facsimile: 972-404-0060




	 	 	 
	EXISTING CLIENT FACTORING AGREEMENT-ALLIED CAPITAL PARTNERS, L.P. 11.11.08

	 	Page 6 of 9
	 
	 	 
	 

	 	 /s/DD Initial





 









 






Seller.

Cistera Networks, Inc.

6509 Windcrest Drive, Suite 160

Plano, TX 75024

Facsimile: 972-381-4635





	 	19.6	 	Seller waives all notices of default, opportunity to cure,
presentment, demand, protest, and notice of dishonor.
	 
	 	19.7	 	This Agreement constitutes the entire understanding between the
parties and it may not be changed or, except as specifically provided herein,
terminated except in an instrument signed by both parties.
	 
	 	19.8	 	Allied shall not be deemed to have waived any of its rights
and remedies unless the waiver is in writing and signed by Allied. A waiver by
Allied of a right or remedy under this Agreement on one occasion shall not
constitute a waiver of the right or remedy on any subsequent occasion.
	 
	 	19.9	 	Seller may inspect the (i) Reserve Account Report, (ii)
Purchase and advance Report, (iii) Account Aging Report, and (iv) all other
reports that Allied may make available to Seller (the “Reports”) concerning
transactions arising under this Agreement at any time through access granted on a
website maintained by Allied. All debits and credits posted to such Reports shall
be deemed complete, acceptable, conclusive and binding upon Seller and such
Reports shall be deemed an account stated for each calendar month after the
commencement of this Agreement, unless Allied receives written notice from Seller
stating in detail and with particularity any exception thereto within 30 days
after the end of such calendar month.
	 
	 	19.10	 	Seller shall reimburse Allied for the following costs incurred by
Allied in the course of performing its functions under this Agreement: credit
research, certified mail postage, UCC searches and UCC filing fees, and wire
transfer fees. The cost of credit reports and all other costs shall be reimbursed
at Allied’s actual cost. Seller also agrees to reimburse Allied the actual amount
of costs and expenses, including reasonable attorney’s fees, incurred by Allied in
protecting, preserving or enforcing any lien, security interest, title, Collateral
or other right granted by Seller to Allied or arising under applicable law,
whether or not suit is brought, including but not limited to the defense of
fraudulent transfer and preference claims, enforcement of this Agreement or
recovery of any damages incurred by Allied as a result of the Seller’s default.
Seller shall also reimburse Allied for its actual costs in assuring Seller’s
continuing compliance with this Agreement, such as the cost of the federal tax
lien search, UCC searches and Secretary of State Confirmations and certificates.
	 
	 	19.11	 	Seller agrees to execute any further documents and to take
any further actions reasonably requested by Allied to evidence or perfect the
Security Interest granted herein or the assignments of Accounts pursuant
hereto, or to give effect to any of the rights granted to Allied under this
Agreement.
	 
	 	19.12	 	Seller has signed this agreement and submits the Agreement to
Allied for acceptance at Allied’s offices in Dallas, Dallas County, Texas. Seller
and Allied shall make all payments and perform all other obligations arising
hereunder at Dallas County, Texas, and this Agreement is made and entered into at
Dallas County, Texas. Dallas County, Texas, shall be the venue for any litigation
arising under this Agreement. Client acknowledges that Allied Capital Partners,
L.P. is the assumed name of Allied Capital Services, L.P., a Texas limited
partnership, and that Allied Capital Services, L.P. also does business under the
assumed name, TCC. All contracts, UCC filings and this factoring agreement shall
only be binding upon and inure to the benefit of Allied Capital Services, L.P., if
executed or filed in the name of Allied Capital Services, L.P. or in one of its
aforementioned assumed names. In the event it becomes necessary for Allied to
obtain a temporary restraining order or other injunctive relief in order to
enforce the provisions of this Agreement, Seller hereby agrees to such an order,
and the parties agree that the Court may require a bond which does not exceed the
sum of $1,000.00 as a condition therefor, and such bond shall be reasonable and
adequate in all respects and under all circumstances.
	 
	 	19.13	 	All amounts payable to Allied by Seller, including without
limitation amounts payable under this Agreement are payable on demand by Allied,
except amounts payable under Paragraph 13 of this Agreement, for which no demand
is required; Allied is authorized, at its sole option, to collect any payments
owing by Seller to Allied under this Agreement by debit, offset or recoupment from
or against





	 	 	 
	EXISTING CLIENT FACTORING AGREEMENT -ALLIED CAPITAL PARTNERS, L.P. I LI 1.08

	 	Page 7 of 9
	 
	 	 
	 

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	 	 	 	the Reserve, at any time and from time to time. In the event Seller is in
default under any of the terms of this Agreement, Allied may, at its option,
require Seller to repurchase all unpaid Accounts that were purchased by Allied,
even if such Accounts were purchased Without Recourse. Interest shall accrue on
all sums owing to Allied by Seller at 17% per annum, but not to exceed the
highest rate permitted by law, as amended from time to time. The determination
of the highest rate permitted by applicable Texas law shall be made by using the
weekly ceiling, as applicable and as limited by statutorily fixed interest rate
ceilings (the "Maximum Rate”). In no event shall the amount paid, or
agreed to be paid to or charged by Allied for the use, forbearance, of detention
of money or for the payment of performance of any covenant or obligation
contained herein exceed the Maximum Rate, and if Allied receives interest which
otherwise would anise the amount paid, charged, collected or demanded to exceed
the Maximum Rate, and Allied receives interest which otherwise would exceed the
Maximum Rate, such amount which would be excessive interest shall be applied to
the reduction of the principal indebtedness and the balance, if any, shall be
refunded the Seller.
	 
	 	19.14	 	This Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if all signatures
were upon the same instrument. Signatures may be affixed manually or digitally
and delivery of an executed counterpart of the signature pages to this Agreement
by facsimile or by electronic means shall be effective as delivery of a manually
executed counterpart, and any party delivering such and executed counterpart of
this Agreement or facsimile or electronic means to any other party shall
thereafter also promptly deliver a manually executed counterpart of this
Agreement to such other party, provided that the failure to deliver such manually
executed counterpart shall not affect the validity, enforceability or binding
effect of this Agreement.
	 
	 	19.15	 	Allied may, in its desecration, require Seller to provide Allied
with monthly or quarterly financial statements, accounts receivable aging,
accounts payable aging, and other reports or documentation on the business.
	 
	 	19.16	 	Seller understands and agrees that Allied may not purchase
Maintenance Accounts from Seller, if Face Amount of the total unpaid Maintenance
Accounts owned by Allied exceed the lesser of (i) 25% of Allied’s net funds
employed (as shown on the Client Summary maintained by Allied) on all Accounts
that are not Maintenance Accounts, or (ii) the sum of $100,000.00.






	 	20.	 	Seller represents and warrants to Allied that , during each calendar
quarter of the term of this Agreement, the difference between the (i) the sum of all
Accounts which Seller becomes obligated to re-purchase from Allied under this Agreement
and (ii) the sum of the collections of all Accounts created by Seller that were not sold
to Allied or that were re-purchased by Seller from Allied (“Account Dilution”) will
never be greater than 10% of the Face Amount of all Accounts purchased by Allied (the
“Maximum Account Dilution”). Allied established the Reserve percentage set forth in this
Agreement based on Seller’s representations and warranties to Allied concerning the
Maximum Account Dilution. If Account Dilution during any calendar quarter exceeds
Maximum Account Dilution by more than three (3) percentage points, Allied may (at its
sole option and discretion) raise the Reserve for the next calendar quarter the same
number of percentage points as such Account Dilution exceeds Maximum Dilution.





Seller:




	 	 	 
	By: /s/ Derek Downs
	 	 
	 

Name: Derek Downs

Title: President

	 	 
	Date: December 2, 2008
	 	 






 









 






INDIVIDUAL GUARANTY



The undersigned, Derek Downs (“Guarantor”), is financially interested in Cistera Networks, Inc.
(“Seller”). In order to induce Allied Capital Partners, L2. (“Allied”) to purchase Accounts of
Seller pursuant to the Factoring Agreement by and between Allied and Seller (the “Factoring
Agreement”), Guarantor hereby personally, absolutely, unconditionally and irrevocably guarantees
prompt and full payment and performance of all presently existing and hereinafter arising
liabilities and obligations of Seller to Allied, including (but not limited to) payment of Allied’s
damages resulting from Seller’s breach of obligations, warranties, covenants, agreements and
representations under the Factoring Agreement. The Guarantor shall be directly and primarily liable
for the obligations of Seller to Allied, jointly and severally with Seller.



This is a continuing guaranty relating to all of the Seller’s obligations to Allied, including
Seller’s obligations arising under successive transactions. This guaranty may not be revoked by
Guarantor without the written consent of Allied.



Guarantor’s liability hereunder shall not be affected by (a) any revocation, release, extension,
rearrangement, modification or settlement of all or any portion of the liability of another
guarantor of Seller’s liabilities to Allied or of any Account purchased by Allied or constituting
Collateral securing payment of Seller’s liabilities to Allied, or (b) any modification, extension,
rearrangement or settlement of the liabilities of Seller to Allied effected without the prior
knowledge or consent of Guarantor.



All amounts payable hereunder are payable on demand of Allied at Dallas, Dallas County, Texas. The
laws of the State of Texas shall govern and control the interpretation and enforcement of this
Guaranty. In the event it becomes necessary to file suit to collect any amounts due and owing
hereunder, Allied may recover its reasonable attorney’s fees, cost of suit and interest on all
amounts owing hereunder at a rate of 10% per annum on it its judgment against Guarantor. Guarantor
waives notice of default, opportunity to cure, presentment and demand.




Executed on this 2nd day of December, 2008




Guarantor:
/s/ Derek Downs




3,1 GUARANTY- INDIVIDUAL




Page 1 of I




 









 





INDIVIDUAL GUARANTY



The undersigned, Greg Royal (“Guarantor”), is financially interested in Cistera Networks, Inc.
(“Seller”). In order to induce Allied Capital Partners, L.P. (“Allied”) to purchase Accounts of
Seller pursuant to the Factoring Agreement by and between Allied and Seller (the “Factoring
Agreement”), Guarantor hereby personally, absolutely, unconditionally and irrevocably guarantees
prompt and full payment and performance of all presently existing and hereinafter arising
liabilities and obligations of Seller to Allied, including (but not limited to) payment of Allied’s
damages resulting from Seller’s breach of obligations, warranties, covenants, agreements and
representations under the Factoring Agreement. The Guarantor shall be directly and primarily liable
for the obligations of Seller to Allied, jointly and severally with Seller.



This is a continuing guaranty relating to all of the Seller’s obligations to Allied, including
Seller’s obligations arising under successive transactions. This guaranty may not be revoked by
Guarantor without the written consent of Allied.



Guarantor’s liability hereunder shall not be affected by (a) any revocation, release, extension,
rearrangement, modification or settlement of all or any portion of the liability of another
guarantor of Seller’s liabilities to Allied or of any Account purchased by Allied or constituting
Collateral securing payment of Seller’s liabilities to Allied, or (b) any modification, extension,
rearrangement or settlement of the liabilities of Seller to Allied effected without the prior
knowledge or consent of Guarantor.



All amounts payable hereunder are payable on demand of Allied at Dallas, Dallas County, Texas. The
laws of the State of Texas shall govern and control the interpretation and enforcement of
this Guaranty. In the event it becomes necessary to file suit to collect any amounts due
and owing hereunder, Allied may recover its reasonable attorney’s fees, cost of suit and interest
on all amounts owing hereunder at a rate of 10% per annum on it its judgment against Guarantor.
Guarantor waives notice of default, opportunity to cure, presentment and demand.




Executed on this 2nd day of December, 2008




Guarantor: /s/ Greg Royal




3,1 GUARANTY- INDIVIDUAL




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