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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 have certain rights of sub
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