Exhibit 10.7
UNCONDITIONAL
GUARANTY
For and in consideration of the loan
LONGVIEW FUND, LP and ALPHA CAPITAL ANSTALT (collectively,
“Lender”) to IRVINE SENSORS CORPORATION
(“Borrower”), which loan is made pursuant to a Loan and
Security Agreement between Borrower and Lender dated as of
December 29, 2006, as amended from time to time (the
“Agreement”), and acknowledging that Lender would not
enter into the Agreement without the benefit of this Guaranty, the
undersigned guarantor (“Guarantor”) hereby
unconditionally and irrevocably guarantees the prompt and complete
payment of all amounts that Borrower owes to Lender under the
Agreement or any Loan Document (as defined in the Agreement) and
performance by Borrower of the Agreement and any Loan Document
between Borrower and Lender, as amended from time to time
(collectively referred to as the “Agreements”), in
strict accordance with their respective terms. All terms used
without definition in this Guaranty shall have the meaning assigned
to them in the Agreement.
1. If Borrower does not pay any
amount or perform its obligations in strict accordance with the
Agreements, Guarantor shall immediately pay all amounts due
thereunder (including, without limitation, all principal, interest,
and fees) and otherwise to proceed to complete the same and satisfy
all of Borrower’s obligations under the
Agreements.
2. If there is more than one
guarantor, the obligations hereunder are joint and several, and
whether or not there is more than one guarantor, the obligations
hereunder are independent of the obligations of Borrower and any
other person or entity, and a separate action or actions may be
brought and prosecuted against Guarantor whether action is brought
against Borrower or whether Borrower be joined in any such action
or actions. Guarantor waives the benefit of any statute of
limitations affecting its liability hereunder or the enforcement
thereof, to the extent permitted by law. Guarantor’s
liability under this Guaranty is not conditioned or contingent upon
the genuineness, validity, regularity or enforceability of the
Agreements.
3. Guarantor authorizes Lender,
without notice or demand and without affecting its liability
hereunder, from time to time to (a) renew, extend, or otherwise
change the terms of the Agreements or any part thereof; (b) take
and hold security for the payment of this Guaranty or the
Agreements, and exchange, enforce, waive and release any such
security; and (c) apply such security and direct the order or
manner of sale thereof as Lender in its sole discretion may
determine.
4. Guarantor waives any right to
require Lender to (a) proceed against Borrower , any guarantor or
any other person; (b) proceed against or exhaust any security held
from Borrower; or (c) pursue any other remedy in Lender’s
power whatsoever. Lender may, at its election, exercise or decline
or fail to exercise any right or remedy it may have against
Borrower or any security held by Lender, including without
limitation the right to foreclose upon any such security by
judicial or nonjudicial sale, without affecting or impairing in any
way the liability of Guarantor hereunder. Guarantor waives any
defense arising by reason of any disability or other defense of
Borrower or by reason of the cessation from any cause whatsoever of
the liability of Borrower. Guarantor waives any setoff, defense or
counterclaim that Borrower may have against Lender. Guarantor
waives any defense arising out of the absence, impairment or loss
of any right of reimbursement or subrogation or any other rights
against Borrower. Until all of the amounts that Borrower owes to
Lender have been paid in full, Guarantor shall have no right of
subrogation or reimbursement, contribution or other rights against
Borrower, and Guarantor waives any right to enforce any remedy that
Lender now has or may hereafter have against Borrower. Guarantor
waives all presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor,
and notices of acceptance of this Guaranty and of the existence,
creation, or incurring of new or additional indebtedness. Guarantor
assumes the responsibility for being and keeping itself informed of
the financial condition of Borrower and of all other circumstances
bearing upon the risk of nonpayment of any indebtedness or
nonperformance of any obligation of Borrower, warrants to Lender
that it will keep so informed, and agrees that absent a request for
particular information by Guarantor, Lender shall not have any duty
to advise Guarantor of information known to Lender regarding such
condition or any such circumstances. Guarantor acknowledges that,
to the extent Guarantor has or may
