Exhibit 10.2


 


SECOND AMENDMENT TO LOAN AND SECURITY
AGREEMENT


 


THIS SECOND AMENDMENT TO LOAN AND
SECURITY AGREEMENT (this “Agreement”) made as of
June     , 2004, by and between SILICON VALLEY BANK, a
California-chartered bank (“Bank”) with its principal place of business at 3003
Tasman Drive, Santa Clara, California 95054 and with a loan production office
located at 5 Radnor Corporate Center, Suite 555, 100 Matsonford Road, Radnor,
Pennsylvania 19187 and  IMMUNICON CORPORATION, a Delaware corporation whose address is
3401 Masons Mill Road, Suite 100, Huntingdon Valley, Pennsylvania 19006 (the
“Company”); IMMUNIVEST CORPORATION, a Delaware corporation, IMMC
HOLDINGS, INC., a Delaware corporation and IMMUNICON EUROPE, INC., a
Delaware corporation whose addresses are 1209 Orange Street, Wilmington,
Delaware  19801 (each a “Borrower” and
collectively, the “Borrowers”).


 


RECITALS.


 


A.                                   Borrowers
and Bank have entered into that certain Loan and Security Agreement dated
April 30, 2002 (as thereafter amended from time to time, the “Loan
Agreement”), pursuant to which Bank has agreed to establish certain loans in
favor of Borrowers.


 


B.                                     Borrowers
have requested that Bank modify certain provisions of the Loan Agreement, and
the Bank has agreed to the foregoing on the condition, among others, that this
Agreement be executed and delivered by Borrowers to Bank.


 


C.                                     Unless
otherwise defined herein, capitalized terms used herein shall have the
respective meanings set forth in the Loan Agreement.


 


NOW, THEREFORE, in
consideration of the foregoing, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, Borrower and Bank
do hereby agree as follows:


 


1.                                       Recitals.  The parties hereto acknowledge and agree
that the above Recitals are true and correct in all material respects and that
the same are incorporated herein and made a part hereof by reference.


 


2.                                 Primary Accounts. 
Section 6.6 of the Loan Agreement is amended and restated in its
entirety as follows:


 


6.6                                 Primary Accounts.


 


Each Borrower will maintain its primary depository and
operating account with Bank and will maintain a portion of its excess cash with
Bank.


 


3.                                       Financial
Covenants.  Section 6.7 of the
Loan Agreement is hereby amended and restated in its entirety as follows:


 

















 


6.7                                 Financial
Covenants.  Borrowers will maintain as of the last day of each month (unless
otherwise stated below):


 


(a)                                  Remaining Months Liquidity.  At all times that outstanding Obligations
are equal to or exceed Five Hundred Thousand Dollars ($500,000), Borrower will
maintain, as of the last day of each month, at least six (6) Remaining Months
Liquidity and at all other times, Borrower will maintain, as of the last day of
each month, at least four (4) Remaining Months Liquidity.


 


4.                                       Compliance
Certificate.  Exhibit C to
the Loan Agreement is hereby replaced in its entirety with Exhibit C
attached hereto.


 


5.                                       Representations
and Warranties.  Each Borrower
hereby issues, makes, ratifies and confirms the representations, warranties and
covenants, as applicable to it, contained in the Loan Documents as of the date
hereof, and further represents, warrants and covenants to the Bank as follows:


 


(i)                                     Power
and Authority.  Borrower has full
power and authority to execute and deliver this Agreement and each of the other
Loan Documents executed and delivered by it, to make the borrowing hereunder,
and to incur the Obligations, all of which have been duly authorized by all
proper and necessary corporate action. 
Except for consents which have been obtained, no consent or approval of
stockholders or of any public authority is required as a condition to the
validity or enforceability of this Agreement or any of the other Loan Documents
executed and delivered by Borrower.


 


(ii)                                  Binding
Agreements.  This Agreement and each
of the other Loan Documents executed and delivered by Borrower have been
properly executed by Borrower, constitute valid and legally binding obligations
of Borrower, and are fully enforceable against Borrower in accordance with
their respective terms.


 


(iii)                               No
Conflicting Agreements.  There is
(a) no charter, by-law or preference stock provision of Borrower and no
provision of any existing mortgage, indenture, contract or material agreement
binding on Borrower or affecting its property, and (b) to the knowledge of
Borrower no provision of law or order of court binding upon Borrower, which
would conflict with or in any way prevent the execution, delivery, or
performance of the terms of this Agreement or of any of the other Loan
Documents executed and delivered by Borrower or which would be violated as a
result of such execution, delivery or performance.


 


6.                                       Conditions
Precedent.  This Agreement shall not
become effective until Bank receives the following, each of which shall be
satisfactory in form and substance to Bank:


 


(a)                                  proof
that Borrowers have paid all fees, costs and expenses to Bank in connection
with this Agreement, including but not limited to all Bank’s attorneys fees and
expenses; and


 


2

















 


(b)                                 such
other information, instruments, opinions, documents, certificates and reports
as Bank may deem necessary.


 


7.                                       Counterparts.  This Agreement may be executed in any number
of duplicate originals or counterparts, each of which duplicate original or
counterpart shall be deemed to be an original and all taken together shall
constitute one and the same instrument.


 


8.                                       Loan
Documents; Governing Law; Etc.  This
Agreement is one of the Loan Documents defined in the Loan Agreement and shall
be governed and construed in accordance with the laws of the Commonwealth of
Pennsylvania. The headings and captions in this Agreement are for the
convenience of the parties only and are not a part of this Agreement.


 


9.                                       Acknowledgments.  Each Borrower hereby confirms to Bank the
enforceability and validity of each of the Loan Documents.  In addition, each Borrower hereby agrees to
the execution and delivery of this Agreement and the terms and provisions,
covenants or agreements contained in this Agreement shall not in any manner
release, impair, lessen, modify, waive or otherwise limit the joint and several
liability and obligations of Borrowers under the terms of any of the Loan
Documents, except as otherwise specifically set forth in this Agreement.  Each Borrower issues, ratifies and confirms
the representations, warranties and covenants contained in the Loan Documents,
except for such representations and/or warranties which, by their nature,
covered specific facts and events as they existed as of the date they were originally
made under the Loan Agreement, in which case each Borrower issues, ratifies and
confirms such representations and/or warranties as of the date they were
originally made under the Loan Agreement.


 


10.                                 Modifications.  This Agreement may not be supplemented,
changed, waived, discharged, terminated, modified or amended, except by written
instrument executed by the parties.


 


[SIGNATURES ARE ON
THE FOLLOWING PAGE]


 


3

















 


IN WITNESS
WHEREOF, the parties hereto have caused this Agreement to be executed as of the
date first above written.


 


	
   

  	
  BY:

  	
  /s/ James G. Murphy

  
	
   

  	
   

  	
  Sr. Vice President,
  Finance and

  Administration, Chief Financial Officer

  
	
   

  	
   

  	
  IMMUNICON CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BY:

  	
  /s/ James G. Murphy

  
	
   

  	
   

  	
  Treasurer

  
	
   

  	
   

  	
  IMMUNIVEST CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BY:

  	
  /s/ James G. Murphy

  
	
   

  	
   

  	
  President

  
	
   

  	
   

  	
  IMMC HOLDINGS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BY:

  	
  /s/ James G. Murphy

  
	
   

  	
   

  	
  Treasurer

  
	
   

  	
   

  	
  IMMUNICON EUROPE, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BY:

  	
  /s/ Doug Marshall

  
	
   

  	
   

  	
  Vice President

  
	
   

  	
   

  	
  SILICON VALLEY BANK

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BY:

  	
  /s/ Maggie Garcia

  
	
   

  	
   

  	
  AVP

  
	
   

  	
   

  	
  SILICON VALLEY BANK

  



 


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EXHIBIT C


COMPLIANCE CERTIFICATE


 


	
  TO:

  	
  SILICON VALLEY BANK

  3003 Tasman Drive

  Santa Clara, CA 95054

  
	
   

  	
   

  
	
  FROM:

  	
  IMMUNICON CORPORATION

  



 


The undersigned authorized
officer of Immunicon Corporation (“Borrower”) certifies that under the terms
and conditions of the Loan and Security Agreement among Borrower, its
Subsidiaries and Bank (the “Agreement”), (i) Borrower is in complete
compliance for the period ending                        
with all required covenants except as noted below and (ii) all
representations and warranties in the Agreement are true and correct in all material
respects on this date.  Attached are the
required documents supporting the certification.  The Officer certifies that these are prepared in accordance with
Generally Accepted Accounting Principles (GAAP) consistently applied from one
period to the next except as explained in an accompanying letter or footnotes.  The Officer acknowledges that no borrowings
may be requested at any time or date of determination that Borrower is not in
compliance with any of the terms of the Agreement, and that compliance is
determined not just at the date this certificate is delivered.


 


Please indicate compliance status by circling Yes/No under
“Complies” column.


 


	
  Reporting Covenant

  	
   

  	
  Required

  	
   

  	
   

  	
   

  	
  Complies

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Monthly financial
  statements

  	
   

  	
  Monthly within 30 days

  	
   

  	
   

  	
   

  	
  Yes

  	
   

  	
  No

  	
   

  
	
  Annual (Audited)

  	
   

  	
  FYE within 120 days

  	
   

  	
   

  	
   

  	
  Yes

  	
   

  	
  No

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Financial Covenant

  	
   

  	
  Required

  	
   

  	
  Actual

  	
   

  	
  Complies

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Maintain on a Monthly
  Basis:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Minimum
  Liquidity Coverage

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (Outstanding
  Obligations equal or greater than $500,000)

  	
   

  	
  6 months

  	
   

  	
   

  	
   

  	
  Yes

  	
   

  	
  No

  	
   

  
	
  (Outstanding
  Obligations less than $500,000)

  	
   

  	
  4 months

  	
   

  	
   

  	
   

  	
  Yes

  	
   

  	
  No

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Have there been updates
  to Borrower’s intellectual property, if appropriate?

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Yes

  	
   

  	
  No

  	
   

  
											



 


	
  Comments Regarding Exceptions:  See Attached.

  	
  BANK USE ONLY

  
	
   

  	
   

  
	
  Sincerely,

  	
  Received by:

  	
   

  
	
   

  	
   

  	
  AUTHORIZED SIGNER

  
	
   

  	
   

  
	
   

  	
   

  	
  Date:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  Verified:

  	
   

  
	
  SIGNATURE

  	
   

  	
  AUTHORIZED SIGNER

  
	
   

  	
   

  
	
   

  	
   

  	
  Date:

  	
   

  
	
  TITLE

  	
   

  
	
   

  	
  Compliance Status:

  	
  Yes

  	
  No