GUARANTY AND INTELLECTUAL PROPERTY SECURITY
AGREEMENT
This Guaranty and
Intellectual Property Security Agreement is entered into as of June
11 , 2008 by and between Pageant Holdings Ltd ("
Noteholder ") and GlucoTel Scientific, Inc. ("
Guarantor ").
RECITALS
A. Noteholder has
agreed to purchase that certain Secured Convertible Discount Note
dated June 11, 2008 (the " Note ") from Guarantor’s
parent, BodyTel Scientific, Inc. (" Parent ") pursuant to
the Note Purchase Agreement by and between Noteholder and Parent,
dated the date hereof (as the same may be amended, modified or
supplemented from time to time, the " Note Agreement ";
capitalized terms used herein are used as defined in the Note
Agreement); but only upon the condition, among others, that
Guarantor shall enter into this Agreement.
B. Guarantor is
willing to enter into this Agreement in order to assure the Parent
of continued funding and thereby to obtain financial and other
benefits for itself.
NOW, THEREFORE,
for good and valuable consideration, receipt of which is hereby
acknowledged, and intending to be legally bound Guarantor hereby
represents, warrants, covenants and agrees as follows:
AGREEMENT
Section 1.
Guaranty . For value received, Guarantor hereby
absolutely, unconditionally and irrevocably guarantees (as primary
obligor and not as surety merely) for the benefit of the Noteholder
the due and punctual payment, performance and observance by Parent
of all its covenants, agreements and obligations (monetary and
non-monetary) contained in the Note and the Note Agreement
(collectively, the " Obligations "), irrespective of: (A)
the validity, binding effect, legality, enforceability or amendment
of, or waiver of compliance with, this Guaranty and Security
Agreement, the Note or the Note Agreement, or any related
documents, (B) any change in the existence or structure of, or the
bankruptcy or insolvency of, Parent or any other entity, (C) any
extension, renewal, settlement, compromise, waiver or release in
respect of any Obligation (or any collateral security therefor) or
any party to this Guaranty and Security Agreement, the Note or the
Note Agreement or any related document, (D) the existence of any
claim, set-off, counterclaim or other right that Guarantor or any
other entity may have against Parent or any other entity or (E) any
other circumstance that might otherwise constitute a legal or
equitable discharge or defense of Guarantor. Guarantor hereby
expressly waives diligence, presentment, demand, protest or notice
of any kind whatsoever, as well as any requirement that the
Noteholder or any entity file claims in the event of receivership
or bankruptcy of Parent or any other entity or exhaust any right to
take any action against Parent or any other entity or with respect
to any collateral at any time securing any of the Obligations and
hereby consents to any and all extensions of time of the due
performance of any or all of the Obligations. This Guaranty and
Security Agreement shall be continuing and, as such, shall remain
operative and in full force and
effect until all Obligations shall have been
duly performed. If at any time the due performance of any
Obligation is rescinded or must otherwise be restored or returned
upon the insolvency, bankruptcy or reorganization of Parent or
otherwise, Guarantor's obligations hereunder shall be reinstated at
such time as though such performance had not been made.
Section 2.
Security Interest . To secure its obligations under
this Agreement, Guarantor grants and pledges to Noteholder a
security interest in all of Grantor's right, title and interest in,
to and under its intellectual property (including without
limitation those Copyrights, Patents and Trademarks listed on
Schedules A, B and C hereto), and including without limitation all
proceeds thereof (such as, by way of example but not by way of
limitation, license royalties and proceeds of infringement suits),
contract rights relating thereto, the right to sue for past,
present and future infringements, all rights corresponding thereto
throughout the world and all re-issues, divisions, continuations,
renewals, extensions and continuations-in-part thereof (the "
Intellectual Property Collateral ").
The rights and remedies of Noteholder with
respect to the security interest granted hereby are in addition to
those set forth in the Note Agreement and the Note, and those which
are now or hereafter available to Noteholder as a matter of law or
equity. Each right, power and remedy of Noteholder provided for
herein or in the Note Agreement or the Note, or now or hereafter
existing at law or in equity shall be cumulative and concurrent and
shall be in addition to every right, power or remedy provided for
herein and the exercise by Noteholder of any one or more of the
rights, powers or remedies provided for in this Intellectual
Property Security Agreement, the Note Agreement or the Note, or now
or hereafter existing at law or in equity, shall not preclude the
simultaneous or later exercise by any person, including Noteholder,
of any or all other rights, powers or remedies.
As used herein, the following terms shall have
the following meanings:
"
Copyrights " are all copyright rights, applications or
registrations and like protections in each work or authorship or
derivative work, whether published or not (whether or not it is a
trade secret) now or later existing, created, acquired or held.
"
Patents " are patents, patent applications and like
protections, including improvements, divisions, continuations,
renewals, reissues, extensions and continuations in part of the
same.
"
Trademarks " are trademark and service mark rights,
registered or not, applications to register and registrations and
like protections, and the entire goodwill of the business of
Grantor connected with the trademarks.
(b) At any time
and from time to time, as necessary or upon request of Noteholder,
and at the sole expense of Guarantor, Guarantor shall promptly and
duly execute and deliver any and all such further instruments and
documents and take such further actions that are necessary to
create, perfect and maintain the security interest under this
Agreement or that Noteholder deems desirable to obtain the full
benefits of this Agreement and of the rights and powers herein
granted.
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