Exhibit
10.1


 


OMNIBUS
MODIFICATION TO LOAN DOCUMENTS AND CONSENT


 


This
Omnibus Modification to Loan Documents and Consent (this "Modification") is entered into as of January 8, 2015,
by and among MODERN SYSTEMS CORPORATION, a Delaware corporation, formerly known as BluePhoenix Solutions USA, Inc., a Delaware
corporation ("Modern") and MS MODERNIZATION SERVICES, INC., a Texas corporation, formerly known as Sophisticated
Business Systems, Inc., successor by merger to BP-AT Acquisition LLC, a Delaware limited liability company f/k/a BP-AT Acquisition
Corporation, a Delaware corporation ("MS", and collectively with Modern, "Borrowers", and each
individually, a "Borrower"), and COMERICA BANK ("Bank").


 


RECITALS


 


WHEREAS,
Modern, BP-AT Acquisition Corporation and Bank are parties to a Loan and Security Agreement dated as of October 2, 2013, as amended
by that certain First Amendment to Loan and Security Agreement, Joinder and Modification to Loan Documents ("First Amendment")
dated as of September 25, 2014 (as it may be further amended from time to time, "Loan Agreement");


 


WHEREAS,
The Loan Agreement, together with all other documents, notes, guaranties, mortgages, security agreements, instruments, documents
and agreements at any time evidencing, governing, securing, supporting, or otherwise relating to the Agreement are herein collectively
called the "Loan Documents".


 


WHEREAS,
on December 3, 2014, BP-AT Acquisition LLC merged with, and into Sophisticated Business Systems, Inc., a Texas corporation with
Sophisticated Business Systems, Inc. being the surviving entity.


 


WHEREAS,
on December 3, 2014, Sophisticated Business Systems, Inc. filed a Restated Certificate of Formation with New Amendments, whereby
it changed its name to MS Modernization Services, Inc., a Texas corporation (the "Name Change Amendment");


 


WHEREAS,
notwithstanding any provisions of the Loan Documents to the contrary, Borrowers have requested that Bank consent to the Name Change
Amendment and refrain from exercising its rights and remedies under the Loan Documents. Bank hereby consents to the Name Change
Amendment, subject to the terms and conditions set forth below;


 


NOW,
THEREFORE, the parties agree as follows:


 


1.           Incorporation
by Reference. The Recitals and the documents referred to therein are incorporated herein by this reference. Except as otherwise
noted, the terms not defined herein shall have the meaning set forth in the Loan Documents.


 


2.           Modification
to the Loan Documents. Subject to the satisfaction of the conditions precedent as set forth herein, the Loan Documents are
hereby modified as set forth below:


 


	 	(a)	Wherever the name BP-AT
    Acquisition Corporation, a Delaware corporation, is used in the Loan Documents, it shall hereafter mean MS Modernization Services,
    Inc., a Texas corporation.




 


3.           Consent.
Under the terms of the First Amendment, the accounts of MS shall not be deemed Eligible Accounts until Bank receives an audit
of the Accounts of MS with results satisfactory to Bank (the "Audit Requirement"). Borrowers have requested that
Bank waive the Audit Requirement and include the Accounts of MS as Eligible Accounts (to the extent such Accounts meet the requirements
of Eligible Accounts). Bank hereby waives the Audit Requirement and agrees that the Accounts of MS may be deemed Eligible Accounts
to the extent such Accounts meet the requirements of Eligible Accounts. This consent shall not be deemed to amend or alter in
any respect the terms and conditions of the Loan Agreement or any other Loan Documents except to the extent expressly set forth
above. Furthermore, the waiver shall not affect in any manner whatsoever any rights or remedies of Bank with respect to any non-compliance
with the Loan Agreement or the other Loan Documents whether in nature of an event of default or otherwise, and whether now in
existence or subsequently arising.


 




    	 



    	 



    

 


4.           No
course of dealing on the part of Bank or its officers, nor any failure or delay in the exercise of any right by Bank, shall operate
as a waiver thereof, and any single or partial exercise of any such right shall not preclude any later exercise of any such right.
Bank's failure at any time to require strict performance by any Borrower of any provision shall not affect any right of Bank thereafter
to demand strict compliance and performance. Any suspension or waiver of a right must be in writing signed by an officer of Bank.


 


5.           Unless
otherwise defined, all initially capitalized terms in this Modification shall be as defined in the Loan Agreement. The Loan Agreement,
as amended hereby, shall be and remain in full force and effect in accordance with its respective terms and hereby is ratified
and confirmed in all respects. Except as expressly set forth herein, the execution, delivery, and performance of this Modification
shall not operate as a waiver of, or as an amendment of, any right, power, or remedy of Bank under the Loan Agreement, as in effect
prior to the date hereof.


 


6.           Each
Borrower represents and warrants that the representations and warranties contained in the Loan Agreement are true and correct
in all material respects as of the date of this Modification except to the extent such representation or warranty expressly relates
to an earlier date, and that no Event of Default has occurred and is continuing.


 


7.           As
a condition to the effectiveness of this Modification, Bank shall have received, in form and substance satisfactory to Bank, the
following:


 


		(a)	this
                                         Modification, duly executed by each Borrower;



 


		(b)	a
                                         Certificate of the Secretary of each Borrower with respect to incumbency and resolutions
                                         authorizing the execution and delivery of this Modification;



 


		(c)	an
                                         amendment to and affirmation of guaranty, executed by Columbia Pacific Opportunity Fund,
                                         L.P.;



 


		(d)	an
                                         amendment to and affirmation of guaranty, executed by Prescott Group Aggressive Small
                                         Cap Master Fund;



 


		(e)	all
                                         reasonable Bank Expenses incurred through the date of this Modification, which may be
                                         debited from any of any Borrower's accounts with Bank; and
	 	 	 
	 	(f)	such
                                         other documents, and completion of such other matters, as Bank may reasonably deem necessary
                                         or appropriate.



 


8.           This
Modification may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together
shall constitute one instrument.


 


[Remainder
of Page Intentionally Left Blank]




    	2



    	 



    

 


IN
WITNESS WHEREOF, Borrowers and Bank have executed and delivered this Modification as of the date first set forth above.


 


	 	MODERN
    SYSTEMS CORPORATION, a Delaware corporation, formerly known as BluePhoenix Solutions USA, Inc.
	 	 	 
	 	By:	/s/
    Rick Rinaldo
	 	Printed Name:  	Rick
    Rinaldo
	 	Title:	Vice
    President
	 	 	 
	 	MS
    MODERNIZATION SERVICES, INC., a Texas corporation, formerly known as Sophisticated Business Systems, Inc., successor by
    merger to BP-AT Acquisition LLC, formerly known as BP-AT Acquisition Corporation
	 	 	 
	 	By:	/s/
    Rick Rinaldo
	 	Printed Name:  	Rick
    Rinaldo
	 	Title:	Vice
    President
	 	 	 
	 	COMERICA
    BANK
	 	 	 
	 	By:	/s/
    Walter Weston
	 	Printed Name:  	Walter Weston
	 	Title:	Vice
    President


 







  


[Signature Page to
Omnibus Modification to Loan Documents and Consent (4840660)]


 


3