ACKNOWLEDGMENT AND AGREEMENT OF LICENSEE REGARDING COLLATERAL ASSIGNMENT
EXHIBIT
99.5
ACKNOWLEDGMENT
AND AGREEMENT
OF
LICENSEE REGARDING
COLLATERAL
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned (the "Licensee”),
hereby:
(i)
consents to the collateral assignment to Castlerigg Master Investments Ltd.,
a
company organized under the laws of the British Virgin Islands (the
"Assignee")
of the
Amended and Restated License Agreement dated December 9, 2003, by and between
Licensee and pSivida Inc. a Delaware corporation (the “Licensor”),as
amended by that certain Amendment No. 1 thereto, dated as of June 28, 2005
(the
"B&L
License Agreement")
pursuant to the terms of that certain Collateral Assignment (the “Assignment”);
and
(ii)
agrees, subject, in all cases, to all of Licensee’s rights under the B&L
License Agreement, including, without limitation, the right of set-off against
the B&L Royalty Payments, and any further defenses or rights of Licensee,
whether existing under contract, otherwise under law, or in equity, to comply
with the direction of payment instructions upon its receipt of a Payment
Direction Notice executed by the Licensor, stating that an Event of Default
(as
defined in the Notes dated the date hereof issued by Licensor to Assignee and
other Noteholders) has occurred and is continuing.
Licensee
hereby acknowledges that, to its knowledge, the B&L License Agreement is in
full force and effect and that it has not given notice of any event of default
under the B&L License Agreement.
This
Acknowledgment and Agreement shall in no way limit, or create in Assignee a
priority right over, the rights of Licensee, if any, in and to the assets of
Licensor based on claims of Licensee against Licensor with respect to funds,
including prepaid royalties, which have been advanced by Licensee to
Licensor.
Capitalized
terms not defined herein shall have the meaning given them in the Assignment.
This Acknowledgment and Agreement sets forth Licensee’s entire agreement with
respect to the collateral assignment and Licensee has no other obligations,
explicit or implicit, with respect thereto, including any such obligations
contained in the Assignment.
IN
WITNESS WHEREOF, the Licensee has caused this Acknowledgment and Agreement
to be
duly executed on this 5th
day of
September, 2006.
BAUSCH
& LOMB INCORPORATED
By:
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
Senior
Vice President and Chief Financial Officer