Financing Agreement

Exhibit 10.1

Financing Agreement

This Financing Agreement is made and entered into by and between Summit Financial Resources, L.P., 2455 East Parley’s Way, Suite 200, Salt Lake City, Utah 84109, Attention: Senior Portfolio Manager, and Irvine Sensors Corporation, a Delaware corporation, 3001 Red Hill Avenue, Building 4, Suite 108, Costa Mesa, California 92626, Attention: John Stuart.

For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1.  Definitions . Terms defined in the singular shall have the same meaning when used in the plural and vice versa. Terms defined in the UCC shall have the meanings set forth in the UCC, except as otherwise defined herein. As used herein, the term:

“Acceptable Account” means an Account of Client conforming to the representations, warranties, and requirements of Section 14, Acceptable Accounts .

“Accounts” shall have the meaning set forth in the definition of Collateral.

“Account Debtor” means any person or entity obligated for payment of an Account.

“Account Due Date” means Ninety (90) days from the date of the invoice evidencing the Account.

“Advance” means an advance of any portion of the Purchase Price to or on behalf of Client.

“Advance Rate” means Eighty Percent (80%), or such other Percent as may be determined from time to time by Summit in its sole discretion.

“Agreement” means this Financing Agreement, together with any amendments, addenda, and modifications.

“Authorized Overadvance” means an Overadvance authorized in writing by Summit.

“Banking Business Day” means any day not a Saturday, Sunday, legal holiday in the State of Utah, or day on which national banks in the State of Utah are authorized to close.

“Chargeback Account” means an outstanding Purchased Account which is past the Account Due Date or is determined to no longer be an Acceptable Account.

“Client” means Irvine Sensors Corporation, a corporation organized and existing under the laws of the State of Delaware, its successors and assigns.

“Collateral” means the following personal property of Client, wherever located, now owned or existing or hereafter acquired or created, all additions and accessions thereto, all replacements, insurance or condemnation proceeds, all documents covering any of the Collateral, all leases of any of the Collateral, all rents, revenues, issues, profits and proceeds arising from the sale, lease, license, encumbrance, collection, or any other temporary or permanent disposition of any of the Collateral or any interest therein, all amendments, modifications, renewals, extensions, and replacements thereof, and all products and proceeds thereof: (a) all inventory (the “Inventory”); (b) all accounts (the “Accounts”); (c) all equipment, goods and motor vehicles (collectively, the “Equipment”); (d) all general intangibles, excluding any and all patents, trademarks and copyrights (registered or unregistered), trade secrets, domain names and addresses, and intellectual property licenses; (e) any and all promissory notes and instruments payable to or owing to Client or held by Client; any and all leases under which Client is the lessor; any and all chattel paper in favor of, owing to, or held by Client, including, without limitation, any and all conditional sale contracts or other sales agreements, whether Client is the original party or the assignee; and any and all security agreements, collateral and titles to motor vehicles which secure any of the foregoing obligations; (f) all deposit accounts, including without limitation, all interest, dividends or distributions accrued or to accrue thereon, whether or not due; (g) all investment property, including all interest, dividends or distributions accrued or to accrue thereon, whether or not due; (h) all documents; (i) all letter-of-credit rights; (j) all supporting obligations; and (k) all balances, deposits, debts or any other amounts or obligations of Summit owing to Client, including, without limitation, any Reserve, whether or not due.

“Collateral Management Fee” means One and One-Tenth Percent (1.1%) of the face amount of each Purchased Account for the first period of Thirty (30) days or portion thereof that the Purchased Account remains outstanding and Fifty-Five Hundredths Percent (0.55%) of the face amount of each Purchased Account for each successive period of Fifteen (15) days or portion thereof thereafter that the Purchased Account remains outstanding until payment in full is applied to the Purchased Account, due and payable monthly in arrears.

“Collected Payments” means collections and payments received by Summit on Accounts of Client, less all interest, Fees and Charges, amounts due and payable to Summit by Client, deductions and setoffs. Credits for Collected Payments shall be provisional and subject to final payment and collection of the deposited item. For purposes of calculating interest owing, Collected Payments delivered to a bank or other agent on behalf of Summit shall be deemed received Three (3) Banking Business Days after the date of receipt of advice by Summit from the bank or agent that the Collected Payments have been credited to the account of Summit.

“Daily Funds Rate” means the prime rate as announced in the Wall Street Journal plus Two Percent (2%) divided by 360. The initial prime rate shall be the prime rate in effect on the date of this Agreement. The Daily Funds Rate may be adjusted from time to time as of the date of any change in the prime rate.

“Default Rate” means the Daily Funds Rate plus Ten Percent (10%) per annum.

“Equipment” shall have the meaning set forth in the definition of Collateral.

“Event of Default” shall have the meaning set forth in Section 26, Default and Remedies .

“Fees and Charges” means the Origination Fee, the Renewal Fees, the Collateral Management Fees, the Supplemental Fee, and the Other Charges.

“Financing Period” means an initial period of one (1) year commencing on the date of this Agreement and thereafter successive periods of one (1) year each commencing upon completion of each prior Financing Period.

“Inventory” shall have the meaning set forth in the definition of Collateral.

“Maximum Credit Line” means Two Million Dollars ($2,000,000.00) or such other amount as may be determined from time to time by Summit in its sole discretion.

“Monthly Minimum” means Two Thousand Dollars ($2,000.00).

“Origination Fee” means One Percent (1%) of the Maximum Credit Line. The Origination Fee shall be due and payable upon execution of this Agreement. In the event the Maximum Credit Line is increased during the first year of this Agreement, an additional Origination Fee shall be charged on the amount of the increase, prorated from the date of the increase to the anniversary date of this Agreement. Any additional Origination Fee shall be due and payable on the effective date of the increase in the Maximum Credit Line. In the event of a decrease in the Maximum Credit Line, no refund or credit shall be given for any Origination Fee which has been paid.

“Other Charges” means the following fees and charges:

a. Any Payment Conversion Fees.

b. All other charges and fees which may be charged by Summit pursuant to this Agreement, other than the Origination Fee, Renewal Fees, Collateral Management Fee, and Supplemental Fee.

“Outstanding Advances” means Advances for which Summit has not received Collected Payments in full and includes Advances against Chargeback Accounts for which Collected Payments in full have not been received and the full re-purchase price has not been paid.

“Overadvance” means (a) the amount by which the Outstanding Advances exceed the Maximum Credit Line, or (b) the amount by which the Outstanding Advances exceed Purchased Accounts which are not Chargeback Accounts multiplied by the Advance Rate.

“Payment Conversion Fee” means Ten Percent (10%) of any payment received by Client on a Purchased Account which is not tendered to Summit as required in this Agreement.

“Purchase Price” of an Account means the face amount of the Account less all interest and Fees and Charges.

“Purchased Account” means an Account that has been purchased by Summit pursuant to Section 2, Purchase of Accounts .

“Qualified Bank Financing” means financing provided directly by a full service commercial bank whose deposits are insured by the Federal Deposit Insurance Corporation in the form of a revolving line of credit for which the primary collateral is Client’s Accounts. Financing provided by a subsidiary, affiliate or division of such a bank does not qualify as Qualified Bank Financing.

“Renewal Fee” means One Percent (1%) of the Maximum Credit Line. The Renewal Fee shall be due and payable upon each anniversary of the Agreement. In the event the Maximum Credit Line is increased after the first year of this Agreement, an additional Renewal Fee shall be charged on the amount of the increase, prorated from the date of increase to the next anniversary date of this Agreement. Any additional Renewal Fee shall be due and payable on the effective date of the increase in the Maximum Credit Line. In the event of a decrease in the Maximum Credit Line, no refund or credit shall be given for any Renewal Fee which has been paid.

“Reserve” means such amount as may be determined from time to time by Summit in its sole discretion.

“Settlement Date” means dates set by Summit, which dates shall be at least weekly.

“Summit” means Summit Financial Resources, L.P., a Hawaii limited partnership, its successors and assigns.

“Supplemental Fee” means the amount by which the Monthly Minimum exceeds amount of interest on Advances and Collateral Management Fees each calendar month, prorated for the first and last months of this Agreement.

“UCC” means the Uniform Commercial Code, as adopted now or in the future in the State of Utah.

2.  Purchase of Account .

Client shall request purchase of Accounts by submitting to Summit a Schedule of Accounts and Bill of Sale, copies of the invoices listed on the Schedule of Accounts and Bill of Sale, supporting documentation for such invoices as requested by Summit, and such other documentation as required by Summit. Summit shall notify Client which Accounts are purchased by providing reports to Client.

Unless otherwise agreed in writing by Summit, upon purchase by Summit of any Account, Client shall thereafter offer all Accounts owing by that Account Debtor for purchase by Summit. Summit may also require that all Accounts owing by that Account Debtor which Summit declines to purchase nonetheless be subject to Section 13 Collection Procedures and be paid to Summit.

Summit may purchase from Client such Acceptable Accounts as Summit elects. All purchases shall be subject to the terms and conditions of this Agreement. THE OBLIGATION OF SUMMIT TO PURCHASE ACCOUNTS FROM CLIENT IS DISCRETIONARY AND SUMMIT SHALL HAVE NO OBLIGATION TO PURCHASE ANY ACCOUNT FROM CLIENT, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT. Summit may decline to purchase any Account submitted by Client for any reason or for no reason, without notice, regardless of any course of conduct or past purchases of Accounts by Summit. Each purchase by Summit shall be a true purchase with transfer of all legal and equitable title and shall not be deemed to be a loan agreement or secured transaction. Client shall thereafter have no right, title or interest in or to Purchased Accounts. Client shall make appropriate entries on its books and records disclosing the sale of Purchased Accounts to Summit.

Summit shall be the sole and exclusive purchaser of Client’s Accounts. Client will not sell, factor or otherwise finance its Accounts and shall not grant any other security interest in its Accounts or Inventory.

3.  Purchase Price of Accounts .

The Purchase Price shall be payable as follows: (i) an amount equal to the face amount of the Account multiplied by the Advance Rate shall be payable upon purchase of the Account by Summit; and (ii) the balance of the Purchase Price shall be payable after receipt of Collected Payments in full for the Purchased Account, such balance to be paid on the next Settlement Date; provided, however, that notwithstanding anything to the contrary in this Agreement, Summit shall not be obligated to make any Advance if, after making the Advance, the amount of all Outstanding Advances will exceed the Maximum Credit Line.

Payment shall be made in accordance with any written instructions of Client which are agreed to by Summit. Absent other instructions, payment shall be made by mailing a check to Client.

4.  Interest, Fees and Charges .

Interest shall accrue on Outstanding Advances, both before and after judgment, from the date of disbursement until receipt of Collected Payments, at the Daily Funds Rate. Upon occurrence of an Event of Default, interest on Outstanding Advances shall thereafter accrue, both before and after judgment, at the Default Rate until receipt of Collected Payments.

In addition, Client shall pay Summit the Fees and Charges. The Collateral Management Fees are for monitoring of the Collateral, collection of the Accounts, and administration of this Agreement. The Collateral Management Fees are not intended to be and shall not be construed to be interest.

Interest and Fees and Charges may be deducted from Advances or from Collected Payments.

5.  Recourse Purchases .

Unless specifically designated otherwise in writing by Summit, all Accounts shall be purchased with recourse and shall become a Chargeback Account if not paid in full by the Account Due Date.

6.  Re-Purchase Obligation and Chargeback Accounts .

If a Purchased Account is not paid in full by the Account Due Date, or if at any time Summit determines that the Purchased Account is no longer an Acceptable Account, the Purchased Account shall thereupon automatically be a Chargeback Account without any action by Summit.

Client shall immediately re-purchase all Chargeback Accounts by paying Summit the amount of the outstanding Advance against the Chargeback Account, plus accrued interest, and Collateral Management Fees thereon.

Interest shall accrue on Chargeback Accounts at the Default Rate until the re-purchase amount is paid in full.

7.  Overadvance .

Authorized Overadvances shall be due upon demand by Summit. Authorized Overadvances shall accrue interest at the Daily Funds Rate plus Three Percent (3%) per annum.

If at any time an Overadvance exists which is not an Authorized Overadvance, Client shall immediately make payment to Summit of an amount equal to the Overadvance. If such payment is not immediately made, interest shall accrue on the Overadvance at the Default Rate regardless of whether Summit waives the Event of Default caused by such non-payment.

8.  Reserve .

Summit may fund the Reserve by withholding amounts owing to Client for Advances or deducting amounts from Collected Payments.

Upon non-renewal of the Financing Period, termination of the right of Client to submit Accounts to Summit as provided in Section 19, Renewal of Financing Period and Termination of Financing , and payment of all amounts owing to Summit by Client, any balance of the Reserve shall be paid to Client, provided that if Summit has reasonable grounds to believe that any collections or other payments received by Summit may be dishonored, voided, or preferential, or claims may be made against Summit for which Client would be liable, Summit may continue to hold the Reserve so long as such matters are outstanding and unresolved.

Summit shall be free to use the Reserve as working capital or as Summit otherwise determines. Summit shall have no obligation to segregate, not commingle, or otherwise account for the use of the Reserve. Client shall not be entitled to any interest on the Reserve. The Reserve shall be a debt owed to Client by Summit, payable in accordance with the terms and conditions of this Agreement.

9.  Application of Payments and Collections .

Summit may apply payments and recoveries first to Fees and Charges, second to outstanding and accrued interest, and third to Outstanding Advances.

10.  Setoff and Deduction by Summit .

As to all amounts owing to Summit by Client, Summit may (i) deduct such amount from Collected Payments received on Accounts, (ii) setoff and deduct such amount against Advances or any amount owing by Summit to Client, (iii) demand payment from Client whereupon Client shall promptly pay such amount to Summit, or (iv) exercise any combination of the alternatives set forth in this Section or available under this Agreement, at law, or in equity.

11.  Excess Interest .

It is the intent of the parties to comply with any usury law applicable to this Agreement and to all amounts owing pursuant to this Agreement and it is understood and agreed that in no event and upon no contingency shall Client or any guarantor be required to pay interest in excess of the rate allowed by any laws of any state which are determined to be applicable and governing. The intention of the parties being to conform strictly to any applicable usury laws, this Agreement shall be held to be subject to reduction to the amount allowed under any applicable and governing usury laws as now or hereafter construed by the courts having jurisdiction. In the event Summit receives any interest under this Agreement in excess of any highest permissible rate under any applicable and governing law, such excess interest (including simple interest thereon at the highest permissible rate which is applicable and governing) shall be promptly applied to the amounts owing by Client hereunder and then to Outstanding Advances. To the extent such excess interest is greater than such amounts, Summit shall promptly remit such overage to Client.

12.  Reports and Audits .

Upon request, which request may be made as frequently as determined by Summit, Client will promptly submit to Summit a current Account Debtor list, which shall include the name, address, contact person name, phone number and fax number for each active Account Debtor and such other records and reports concerning its Accounts, Inventory, the Collateral, and operations as may be requested by Summit.

Client shall, at any reasonable time and from time to time, permit Summit or any representative of Summit to conduct field audits, examine, audit, and make copies of and extracts from the records and books of, and visit and inspect the Collateral, properties and assets of, Client, and to discuss the affairs, finances, and Accounts of Client with any of Client’s officers, directors, and partners and with Client’s independent accountants.

13.  Collection Procedures .

a. Unless directed otherwise in writing by Summit, Client shall promptly mail an invoice to each Account Debtor on each Purchased Account, which invoice shall be stamped or printed with a notice, in a form acceptable to Summit, stating that the Account is payable to Summit and providing payment instructions. Except as agreed otherwise in writing by Summit, Summit shall have the exclusive right to collect and to receive all payments on all Purchased Accounts. Client shall not otherwise bill for, submit any invoice, or otherwise attempt to collect any Purchased Account, except as authorized in writing by Summit. Summit is authorized to notify Account Debtors of the assignment and purchase of Client’s Accounts and to direct Account Debtors to make all payments on Purchased Accounts directly to Summit.

b. Client authorizes Summit to contact Account Debtors concerning verification and payment of Accounts and to settle or compromise any Account, in the sole discretion of Summit subject only to acting in good faith. Client hereby waives and releases any and all claims relating to or arising out of any act or omission by Summit in the verification and collection of the Accounts, excluding those based on gross negligence or intentional misconduct.

c. All collections of Purchased Accounts shall be handled by Summit. Collection of Accounts in a commercially reasonable manner does not require, and Summit is not obligated, to commence any legal action, including the sending of an attorney’s demand letter, to collect any Account. Client acknowledges and agrees that Summit is not a collection agency and will not provide debt collection services for Client’s Accounts. If any Purchased Account is not timely paid, Summit may, but is not obligated to, engage a collection agency, attorney or other service provider to collect Purchased Accounts. All commissions, fees and charges of any such collection agency, attorney or other service provider shall be paid by Client. CLIENT HEREBY WAIVES AND RELEASES ANY AND ALL CLAIMS RELATING TO OR ARISING OUT OF ANY ACT OR OMISSION BY SUMMIT IN THE COLLECTION OF PURCHASED ACCOUNTS, GROSS NEGLIGENCE AND INTENTIONAL MISCONDUCT EXCEPTED.

d. Client shall promptly and completely respond to all requests from Summit for any information or records requested to assist in collection of Accounts. If Client fails to respond to any request within Fifteen (15) days, Summit may deem the Account to no longer be an Acceptable Account.

e. Upon inquiry from an Account Debtor or upon request of Summit, Client shall notify the Account Debtor to make payment directly to Summit.

f. Any payments received by Client on Purchased Accounts shall be held in trust by Client for Summit. In the event an Account Debtor makes payment to Client on any Purchased Account, Client shall immediately notify Summit of the payment and deliver the payment to Summit. If payment is made in cash, such payment shall be immediately delivered to Summit. If payment is made by check or similar instrument, such instrument shall be immediately delivered to Summit in the form received without negotiation. If payment is made by electronic funds transfer, Client shall immediately forward such payment to Summit by electronic funds transfer.

If any payment received by Client on any Account is deposited or negotiated by Client, or if Client fails to tender the payment to Summit within Five (5) Banking Business Days of receipt by Client, Client shall promptly pay Summit the Payment Conversion Fee.

Client acknowledges and agrees that it has no right, title or interest whatsoever in the funds constituting payment of Purchased Accounts, that said funds are the sole and exclusive property of Summit, and that any use of or interference with sai