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EXECUTION COPY
Exhibit 10.1
COLLATERAL PLEDGE
AND SECURITY AGREEMENT
Dated as of December 21, 2001
among
VEECO INSTRUMENTS INC.
as Pledgor,
STATE STREET BANK AND TRUST COMPANY, N.A.
as Trustee,
STATE STREET BANK AND TRUST COMPANY, N.A.
as Collateral Agent, and
STATE STREET BANK AND TRUST COMPANY
as Securities Intermediary
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This Collateral Pledge and Security Agreement (as supplemented from
time to time, this "Pledge Agreement") is made and entered into as of December
21, 2001 among VEECO INSTRUMENTS INC., a Delaware corporation (the "Pledgor"),
having its principal offices at 100 Sunnyside Boulevard, Woodbury, New York
11797, STATE STREET BANK AND TRUST COMPANY, N.A., a national banking
association, having its principal corporate trust office at 61 Broadway, 15th
Floor, New York, New York, 10006, as trustee (in such capacity, the "Trustee")
for the holders (the "Holders") of the Notes (as defined herein) issued by the
Pledgor under the Indenture referred to below, STATE STREET BANK AND TRUST
COMPANY, N.A., a national banking association, having a corporate trust office
at 61 Broadway, 15th Floor, New York, New York, 10006, as collateral agent for
the Trustee and the holders from time to time of the Notes referred to below (in
such capacity, the "Collateral Agent"), and STATE STREET BANK AND TRUST COMPANY,
a Massachusetts trust company, having an office where it maintains securities
accounts for customers at Two Avenue de Lafayette, 6th Floor. Boston,
Massachusetts 02110, as securities intermediary (in such capacity, the
"Securities Intermediary").
W I T N E S S E T H:
WHEREAS, the Pledgor and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Salomon Smith Barney Inc. and Thomas Weisel Partners LLC
(collectively, the "Initial Purchasers") are parties to a Purchase Agreement
dated December 18, 2001 (the "Purchase Agreement"), pursuant to which the
Pledgor will issue and sell to the Initial Purchasers $200,000,000 aggregate
principal amount of 41/8% Convertible Subordinated Notes due 2008 (the "Notes");
WHEREAS, the Pledgor and the Trustee have entered into that certain
indenture dated as of the date hereof (as amended, restated, supplemented or
otherwise modified from time to time, the "Indenture"), pursuant to which the
Pledgor is issuing the Notes on the date hereof;
WHEREAS, pursuant to the Indenture, the Pledgor is required to
purchase, or cause the purchase of, and pledge to the Collateral Agent for the
benefit of the Trustee and the Holders, at the Closing Time (as defined in the
Purchase Agreement) or the relevant Date of Delivery (as defined in the Purchase
Agreement), U.S. Government Obligations (as defined in the Indenture) in an
amount that will be sufficient upon receipt of scheduled interest and principal
payments on such securities, as determined by the Pledgor and verified, as to
mathematical accuracy, in the written opinion of Ernst & Young LLP (the form of
which is attached hereto as Exhibit A; and for the purposes hereof, the
"opinion" referred to in Sections 6(d) and (e) shall mean the determination by
the Pledgor and verification by a firm in substantially the form of Exhibit A)
or another nationally recognized firm of independent public accountants selected
by the Pledgor and delivered to the Trustee, to provide for payment in full of
the first six scheduled interest payments due on the Notes (such obligation,
together with the obligation to repay the principal, premium, if any, and
interest (including additional interest, if any) on the Notes in the event that
the Notes become due and payable prior to such time as the first six scheduled
interest payments thereon shall have been paid in full, being collectively
referred to herein as the "Obligations");
WHEREAS, the Collateral Agent has caused the Securities Intermediary to
establish an account (the "Collateral Account") with the Securities
Intermediary, at its office at Two Avenue
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de Lafayette, 6th Floor, Boston, Massachusetts 02110, Account No. 129248-002, in
the name of State Street Bank and Trust Company, N.A., as Collateral Agent for
the benefit of the Trustee and holders of the 41/8 % Convertible Subordinated
Notes Due 2008 of Veeco Instruments Inc. and designated as "STATE STREET BANK
COLL AGENT FOR Veeco"; and
WHEREAS, it is a condition precedent to the purchase of the Notes by
the Initial Purchasers pursuant to the Purchase Agreement that the Pledgor apply
certain of the proceeds of the offering of the Notes to the purchase of the
Pledged Securities (as defined below) and deposit, or cause to be deposited, the
Pledged Securities into the Collateral Account to be held therein subject to the
terms of this Pledge Agreement and that the Pledgor shall have granted the
assignment and security interest and made the pledge and assignment contemplated
by this Pledge Agreement.
NOW, THEREFORE, in consideration of the premises herein contained, and
in order to induce the Initial Purchasers to purchase the Notes, the Pledgor,
the Trustee, the Collateral Agent and the Securities Intermediary hereby agree,
for the benefit of the Initial Purchasers and for the ratable benefit of the
Holders, as follows:
SECTION 1. Definitions; Appointment; Deposit and Investment.
1.1 Definitions.
(a) Unless otherwise defined in this Pledge Agreement, terms defined or
referenced in the Indenture are used in this Pledge Agreement as such terms are
defined or referenced therein.
(b) Unless otherwise defined in the Indenture or in this Pledge
Agreement, terms defined in Article 8 or 9 of the Uniform Commercial Code in
effect in the State of New York ("N.Y. Uniform Commercial Code") from time to
time and/or in Section 357.2 of the Treasury Regulations (as defined in Section
1.1(c)) are used in this Pledge Agreement as such terms are defined in such
Article 8 or 9 and/or such Section 357.2.
(c) In this Pledge Agreement, the following terms have the following
meanings (such meanings to be equally applicable to both the singular and plural
forms of the terms defined):
"Additional Pledged Securities" has the meaning specified in Section
1.3 hereof.
"Cash Equivalents" means, to the extent owned by the Pledgor free and
clear of all Liens other than Liens created hereunder, U.S. Government
Obligations.
"C.F.R." means U.S. Code of Federal Regulations.
"Closing Time" has the meaning specified in the Purchase Agreement.
"Collateral" has the meaning specified in Section 1.3 hereof.
"Collateral Account" has the meaning specified in the recitals of the
parties hereto.
"Collateral Agent" has the meaning specified in the recitals of the
parties hereto.
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"Collateral Investments" has the meaning specified in Section 5 hereof.
"Date of Delivery" has the meaning specified in the Purchase Agreement.
"entitlement holder" has the meaning specified in N.Y. Uniform
Commercial Code Section 8-102(a)(7) or, in respect of any Book-entry Security,
the meaning specified for "Entitlement Holder" in 31 C.F.R. Section 357.2 or, as
applicable to such Book-entry Security, the corresponding federal book-entry
regulations.
"FRBB" means Federal Reserve Bank of Boston.
"FRBB Account" means the FRBB Member Securities Account maintained in
the name of the Securities Intermediary by the FRBB.
"FRBB Member" means any Person that is eligible to maintain (and that
maintains) with the FRBB one or more FRBB Member Securities Accounts in such
Person's name.
"FRBB Member Securities Account" means, in respect of any Person, the
Participant's Securities Account maintained in the name of such Person at the
FRBB, to which account U.S. Government Obligations held for such Person are or
may be credited.
"Holders" has the meaning specified in the recitals of the parties
hereto.
"Initial Pledged Securities" has the meaning specified in Section 1.3
hereof.
"Initial Purchasers" has the meaning specified in the recitals of the
parties hereto.
"Notes" has the meaning specified in the recitals of the parties
hereto.
"N.Y. Uniform Commercial Code" has the meaning specified in Section
1.1(b).
"Obligations" has the meaning specified in the recitals of the parties
hereto.
"Pledge Agreement" has the meaning specified in the recitals of the
parties hereto.
"Pledged Securities" has the meaning specified in Section 1.3 hereof.
"Pledgor" has the meaning specified in the recitals of the parties
hereto.
"Purchase Agreement" has the meaning specified in the recitals of the
parties hereto.
"Securities Intermediary" has the meaning specified in the recitals of
the parties hereto.
"securities intermediary" means a Person that is a "securities
intermediary" (as defined in N.Y. Uniform Commercial Code Section 8-102(a)(14))
and, in respect of any Book-entry Security, a "Securities Intermediary" (as
defined in 31 C.F.R. Section 357.2 or, as applicable to such Book-entry
Security, as defined in the corresponding federal book-entry regulations).
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"security" has the meaning specified in Section 8-102(a)(15) of the
N.Y. Uniform Commercial Code or, in respect of any Book-entry Security, has the
meaning specified for "Security" in 31 C.F.R. Section 357.2 (or, as applicable
to such Book-entry Security, the corresponding federal book-entry regulations).
"security entitlement" has the meaning specified in N.Y. Uniform
Commercial Code Section 8-102(a)(17) or, in respect of any Book-entry Security,
has the meaning specified for "Security Entitlement" in 31 C.F.R. Section 357.2
(or, as applicable to such Book-entry Security, the corresponding federal
book-entry regulations).
"Settlement Date" means, as to any U.S. Government Obligations, the
date on which the purchase of such U.S. Government Obligations shall have been
settled.
"Supplement" has the meaning specified in Section 1.3 hereof, and shall
be substantially in the form of Exhibit B hereto.
"Termination Date" means the earlier of (a) the date of the payment in
full in cash of each of the first six scheduled interest payments due on the
Notes under the terms of the Indenture and (b) the date of the payment in full
in cash of all obligations due and owing under this Pledge Agreement, the
Indenture and the Notes, in the event such obligations become due and payable
prior to the payment of the first six scheduled interest payments on the Notes.
"Treasury Regulations" means (a) the federal regulations contained in
31 C.F.R. Part 357 (including, without limitation, Section 357.2, Section 357.10
through Section 357.14 and Section 357.41 through Section 357.44 of 31 C.F.R.)
and (b) to the extent substantially identical to the federal regulations
referred to in clause (a) above (as in effect from time to time) the federal
regulations governing other U.S. Government Obligations.
"Trustee" has the meaning specified in the recitals of parties hereto.
"uncertificated security" has the meaning specified in Section
8-102(a)(18) of the N.Y. Uniform Commercial Code.
1.2 Appointment of the Collateral Agent. The Trustee hereby appoints
the Collateral Agent as Collateral Agent in accordance with the terms and
conditions set forth herein and the Collateral Agent hereby accepts such
appointment.
1.3 Pledge and Grant of Security Interest. As security for the prompt
and complete payment and performance when due (whether at the stated maturity,
by acceleration or otherwise) of the Obligations, the Pledgor hereby assigns and
pledges to the Collateral Agent for the benefit of the Trustee and the ratable
benefit of the Holders and hereby grants to the Collateral Agent for the benefit
of the Trustee and for the ratable benefit of the Holders, a lien on and first
priority perfected security interest in all of the Pledgor's right, title and
interest in, to and under the following property: (a) (i) the U.S. Government
Obligations identified by CUSIP No. in Schedule I to this Pledge Agreement (the
"Initial Pledged Securities") and (ii) the U.S. Government Obligations, if any,
identified by CUSIP No. in a supplement or supplements (each, a "Supplement,"
the form of which is attached hereto as Exhibit B) to the Pledge Agreement (the
"Additional Pledged Securities" and, together with the Initial Pledged
Securities, the "Pledged
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Securities") and the certificates representing the Pledged Securities (if any),
the scheduled payments of principal and interest thereon which will be
sufficient to provide for payment in full of the first six scheduled interest
payments due on the Notes, (b) the Collateral Account, all security entitlements
from time to time carried in the Collateral Account, all funds held therein and
all certificates and instruments, if any, from time to time representing or
evidencing the Collateral Account, (c) all Collateral Investments (as
hereinafter defined) from time to time and all certificates and instruments, if
any, representing or evidencing the Collateral Investments, and any and all
security entitlements to the Collateral Investments, and any and all related
securities accounts in which any security entitlements to the Collateral
Investments are carried, (d) all notes, certificates of deposit, deposit
accounts, checks and other instruments, if any, from time to time hereafter
delivered to or otherwise possessed by the Collateral Agent for or on behalf of
the Pledgor and specifically designated by the Pledgor to be in substitution for
any or all of the then existing Collateral, (e) all interest, dividends, cash,
instruments and other property, if any, from time to time received, receivable
or otherwise distributed in respect of or in exchange for any or all of the then
existing Collateral and (f) all proceeds of any and all of the foregoing
Collateral (including, without limitation, proceeds that constitute property of
the types described in clauses (a)-(e) of this Section 1.3) and, to the extent
not otherwise included, all (i) payments under insurance (whether or not the
Trustee or the Collateral Agent is the loss payee thereof) or any indemnity,
warranty or guaranty, payable by reason of loss or damage to or otherwise with
respect to any of the foregoing Collateral and (ii) cash proceeds of any and all
of the foregoing Collateral (such property described in clauses (a) through (f)
of this Section 1.3 being collectively referred to herein as the "Collateral").
Without limiting the generality of the foregoing, this Pledge Agreement secures
the payment of all amounts that constitute part of the Obligations and would be
owed by the Pledgor to the Trustee under the Notes, the Indenture, this Pledge
Agreement and any other transaction documents related thereto but for the fact
that they are unenforceable or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving the Pledgor.
SECTION 2. Establishment and Maintenance of Collateral Account.
(a) Prior to or concurrently with the execution and delivery hereof,
the Collateral Agent shall cause the Securities Intermediary to establish the
Collateral Account on its books as a separate account segregated from all other
custodial or collateral accounts at its office at Two Avenue de Lafayette, 6th
Floor, Boston, Massachusetts 02110. The Collateral Agent will cause the
Securities Intermediary to maintain the Collateral Account as a securities
account with the Securities Intermediary. The following provisions shall apply
to the establishment and maintenance of the Collateral Account:
(i) The Collateral Agent shall cause the Collateral
Account to be, and the Collateral Account shall be,
separate from all other accounts maintained for the
Collateral Agent.
(ii) The Collateral Agent shall, in accordance with all
applicable laws, have sole dominion and control over
the Collateral Account.
(iii) It shall be a term and condition of the Collateral
Account, and the Pledgor irrevocably instructs the
Collateral Agent and the Securities Intermediary,
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notwithstanding any other term or condition to the
contrary in any other agreement, that no amount
(including interest on Collateral Investments) shall
be released to or for the account of, or withdrawn by
or for the account of, the Pledgor or any other
Person except as expressly provided in this Pledge
Agreement.
(b) On (i) or prior to the Closing Time, the Pledgor shall purchase,
directly or indirectly, the U.S. Government Obligations listed on Schedule I
hereto and, at the Closing Time, the Pledgor shall, directly or indirectly,
deliver such U.S. Government Obligations to the Securities Intermediary for
credit to the Collateral Account at the Closing Time, and (ii) the relevant Date
of Delivery, if any, the Pledgor shall transfer, or cause to be transferred, to
the Collateral Agent, an amount in cash to be set forth in the relevant
Supplement to the Pledge Agreement, which amount shall be sufficient for the
Collateral Agent to purchase the Additional Pledged Securities by depositing all
such funds into the Collateral Account.
The Collateral Account shall be subject to such applicable laws, and
such applicable regulations of the Board of Governors of the Federal Reserve
System and of any other appropriate banking or governmental authority, as may
now or hereafter be in effect.
(c) As soon as practicably possible after receipt of the amount
referred to in Section 2(b)(ii) (and not later than the Business Day following
the relevant Date of Delivery, (i) the Collateral Agent shall cause the
Securities Intermediary to apply such amount to purchase the U.S. Government
Obligations (in the name of the Securities Intermediary) listed on the relevant
Supplement to the Pledge Agreement hereto, and credit such U.S. Government
Obligations to the Collateral Account as Collateral hereunder; and (ii) the
Collateral Agent shall cause the Securities Intermediary to ensure that, on the
Settlement Date of such U.S. Government Obligations, the FRBB indicates by
book-entry that those U.S. Government Obligations being settled on such date are
credited to the FRBB Account.
(d) The obligations of the Pledgor under Section 2(b)(ii) above and the
obligations of the Collateral Agent under Section 2(c) above may be fulfilled by
the Pledgor purchasing, directly or indirectly, the U.S. Government Obligations
specified under Section 2(c) above for the amount set forth under Section
2(b)(ii) above, and delivering, directly or indirectly, such U.S. Government
Obligations to the Securities Intermediary for credit to the Collateral Account
at the relevant Date of Delivery.
(e) The Collateral Agent will, from time to time, reinvest the proceeds
of Collateral that may mature or be sold in such Collateral Investments (in the
name of the Securities Intermediary) as it will be directed in writing by the
Pledgor, and cause such Collateral Investments to be credited by the Securities
Intermediary to the Collateral Account as Collateral hereunder. Any such
proceeds that the Pledgor directs the Collateral Agent in writing not to
reinvest in Collateral Investments shall be held in the Collateral Account.
SECTION 3. Delivery and Control of Collateral.
(a) All certificates or instruments representing or evidencing
Collateral shall be delivered to and held by or on behalf of the Collateral
Agent pursuant hereto and shall be in suitable form
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for transfer or delivery, or, at the request of the Collateral Agent, shall be
accompanied by duly executed instruments of transfer or assignment in blank. In
addition, the Collateral Agent shall have the right at any time to exchange
certificates or instruments representing or evidencing Collateral for
certificates or instruments of smaller or larger denominations.
(b) With respect to any Collateral that constitutes a security and is
not represented or evidenced by a certificate or instrument, the Pledgor shall
cause the issuer thereof either (i) to register the Collateral Agent as the
registered owner of such security or (ii) to agree in writing with the
Collateral Agent and the Pledgor that such issuer will comply with instructions
with respect to such security originated by the Collateral Agent without further
consent of the Pledgor, the terms of such agreement to be consistent with the
terms of this Agreement (if applicable).
(c) With respect to any Collateral that constitutes a security
entitlement, the Pledgor shall cause the securities intermediary with respect to
such security entitlement either (i) to identify in its records the Collateral
Agent as the entitlement holder of such security entitlement against such
securities intermediary or (ii) to agree in writing with the Pledgor and the
Collateral Agent that such securities intermediary will comply with entitlement
orders (that is, notifications communicated to such securities intermediary
directing transfer or redemption of the financial asset to which Pledgor has a
security entitlement) originated by the Collateral Agent without further consent
of the Pledgor, the terms of such agreement to be consistent with the terms of
this Agreement (if applicable).
(d) With respect to any Collateral that constitutes a securities
account, the Pledgor will comply with subsection (c) of this Section 3 with
respect to all security entitlements carried in such securities account.
(e) Notwithstanding the foregoing, Collateral consisting of U.S.
Government Obligations will be deemed delivered to the Collateral Agent when the
Securities Intermediary (i) shall indicate by book entry that such securities
have been credited to the Collateral Account or (ii) shall receive such security
(or a financial asset based on such security) for the Collateral Account from or
at the direction of the Pledgor, and shall accept such security (or such
financial asset) for credit to the Collateral Account.
(f) Concurrently with the execution and delivery of this Pledge
Agreement, the Collateral Agent is delivering, and concurrently with the
execution and delivery of any Supplement to the Pledge Agreement, the Collateral
Agent will deliver, to the Pledgor and the Initial Purchasers a duly executed
certificate, in the form of Exhibit C hereto, of an officer of the Collateral
Agent.
(g) Pledgor hereby irrevocably authorizes the Collateral Agent at any
time and from time to time to file in the Office of the Secretary of State of
Delaware and any other filing office in the United States any initial financing
statements and amendments thereto that (a) contain a description of collateral
of an equal or lesser scope as the Collateral described in this Pledge Agreement
or any Supplement to the Pledge Agreement, but such description may contain
greater detail than is contained in this Pledge Agreement or any such
Supplement, and (b) contain any other information required by part 5 of Article
9 of the Uniform Commercial Code
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as in effect in any applicable jurisdiction for the sufficiency or filing office
acceptance of any financing statement or amendment therein, including whether
the Pledgor is an organization, the type of organization and any organization
identification number issued to the Pledgor. The Pledgor agrees to furnish any
such information to the Collateral Agent promptly upon request. The Pledgor also
ratifies its authorization for the Collateral Agent to have filed in any Uniform
Commercial Code jurisdiction any initial financing statements or amendments
thereto if filed prior to the date hereof. A photocopy or other reproduction of
this Agreement or any financing statement covering the Collateral or any part
thereof shall be sufficient as a financing statement where permitted by law.
Pledgor agrees that, at the request of the Collateral Agent, Pledgor shall file
any financing statement or amendment thereto that the Collateral Agent is
authorized to file pursuant to this Pledge Agreement.
SECTION 4. Delivery of Collateral Other than U.S. Government
Obligations.
(a) Collateral consisting of cash will be deemed to be delivered to the
Collateral Agent (such that the Collateral Agent will have an enforceable lien
and security interest thereon and therein) when it has been (and for so long as
it shall remain) deposited in or credited to the Collateral Account.
(b) [RESERVED].
(c) Collateral consisting of uncertificated securities (other than U.S.
Government Obligations) will be deemed delivered to the Collateral Agent when
the Securities Intermediary (A) shall indicate by book entry that such
securities have been credited to the Collateral Account or (B) shall receive
such security (or a financial asset based on such security) for the Collateral
Account from or at the direction of the Pledgor, and shall accept such security
(or such financial asset) for credit to the Collateral Account.
(d) Collateral consisting of securities, and represented or evidenced
by certificates or instruments (other than U.S. Government Obligations), will be
deemed delivered to the Collateral Agent when all such certificates or
instruments representing or evidencing the Collateral, including, without
limitation, amounts invested as provided in Section 5, shall be delivered to the
Collateral Agent and held by or on behalf of the Collateral Agent pursuant
hereto and shall be in registered form and specially indorsed to the Collateral
Agent by an effective indorsement, all in form and substance sufficient to
convey a valid security interest in such Collateral to the Collateral Agent or
shall be credited to the Collateral Account.
SECTION 5. Investing of Amounts in the Collateral Account. The
Collateral Agent shall advise the Pledgor if, at any time, any amounts shall
exist in the Collateral Account uninvested, and if directed in writing by the
Pledgor, the Collateral Agent will, subject to the provisions of Section 6 and
Section 13,
(a) invest such amounts on deposit in the Collateral Account in such
Cash Equivalents in the name of the Collateral Agent as the Pledgor may select,
and
(b) invest interest paid on the Cash Equivalents referred to in clause
(a) above, and reinvest other proceeds of any such Cash Equivalents that may
mature or be sold, in each case in such Cash Equivalents in the name of the
Collateral Agent, as the Pledgor may select (the Cash
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Equivalents referred to in clauses (a) and (b) above, together with the Pledged
Securities, being collectively referred to herein as "Collateral Investments");
provided, however, that the amount in cash and Pledged Securities on deposit in
the Collateral Account, collectively, at any time during the term of this Pledge
Agreement, is sufficient to provide for the payment in full of the remaining
interest payments at such time on the Notes up to and including the sixth
scheduled interest payment. Interest and proceeds that are not invested or
reinvested in Collateral Investments as provided above shall be deposited and
held in the Collateral Account. Except as otherwise provided in Sections 11 and
12, the Collateral Agent shall not be liable for any loss in the investment or
reinvestment of amounts held in the Collateral Account. The Collateral Agent is
not at any time under any duty to advise or make any recommendation for the
purchase, sale, retention or disposition of the Collateral Investments.
SECTION 6. Disbursements. The Collateral Agent shall hold the
Collateral in the Collateral Account and release the same, or a portion thereof,
only as follows:
(a) Prior to each of the first six scheduled interest payments on the
Notes, the Collateral Agent shall release from the Collateral Account and pay to
the Trustee for the benefit of, and payment to, the Holders of the Notes in
accordance with the provisions of the Indenture an amount sufficient to pay the
interest due on the Notes on such interest payment date and will take any action
necessary to provide for the payment of the interest on the Notes to the Holders
in accordance with the payment provisions of the Indenture from (and to the
extent of) proceeds of the Collateral in the Collateral Account. Nothing in this
Section 6 shall affect the Collateral Agent's rights to apply the Collateral to
the payments of amounts due on the Notes upon acceleration thereof.
(b) If, prior to the date on which the sixth scheduled interest payment
on the Notes is due:
(i) an Event of Default under the Notes occurs and is
continuing and
(ii) the Trustee or the Holders of 25% in aggregate
principal amount of the Notes accelerate the Notes by
declaring the principal amount of the Notes to be
immediately due and payable in accordance with the
provisions of the Indenture, except for the
occurrence and continuance of an Event of Default
under Section 6.01(6) or (7) of the Indenture, upon
which the Notes will be accelerated automatically
pursuant to the Indenture,
then the Collateral Agent shall promptly, subject to applicable bankruptcy laws,
release the proceeds from the Collateral Account and pay to the Trustee for the
benefit of, and payment to, the Holders of the Notes in accordance with the
provisions of the Indenture. Distributions from the Collateral Account shall be
applied, for the ratable benefit of the Holders, as follows:
(x) first, to any accrued and unpaid interest on the
Notes and
(y) second, to the extent available, to the repayment of
the remaining Obligations, including the principal
amount of the Notes.
Any surplus of such proceeds held by the Collateral Agent and remaining
after payment in full of all of the Obligations shall be paid over to the
Pledgor.
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(c) [RESERVED]
(d) In the event that the Collateral held in the Collateral Account is
less than 100% of the amount sufficient, in the written opinion of Ernst & Young
LLP or another nationally recognized firm of independent public accountants
selected by the Pledgor, to provide for payment in full of the first six
scheduled interest payments due on the Notes (or, in the event an interest
payment or payments have been made, an amount sufficient to provide for payment
in full of all interest payments remaining, up to and including the sixth
scheduled interest payment), the Pledgor shall deposit cash in to the Collateral
Account in the amount of such deficiency.
(e) In the event that the Collateral held in the Collateral Account
exceeds 100% of the amount sufficient, in the opinion of Ernst & Young LLP or
another nationally recognized firm of independent public accountants selected
by the Pledgor, to provide for payment in full of the first six scheduled
interest payments due on the Notes (or, in the event an interest payment or
payments have been made, an amount sufficient to provide for payment in full
of all interest payments remaining, up to and including the sixth scheduled
interest payment), the Collateral Agent shall release to the Pledgor, at the
Pledgor's written request, accompanied by a written opinion prepared by Ernst
& Young LLP or such other nationally recognized firm of independent public
accountants, any such excess Collateral.
(f) Upon the release of any Collateral from the Collateral Account, in
accordance with the terms of this Pledge Agreement, the security interest and
lien evidenced by this Pledge Agreement in such released Collateral will
automatically terminate and be of no further force and effect; provided that the
foregoing shall not affect the security interest and lien on any Collateral not
so released.
(g) Except as expressly provided in this Section 6, nothing contained
in this Pledge Agreement shall (i) afford the Pledgor any right to issue
entitlement orders with respect to any security entitlement to the Pledged
Securities or Collateral Investments or any securities account in which any such
security entitlement may be carried, or otherwise afford the Pledgor control of
any such security entitlement or (ii) otherwise give rise to any rights of the
Pledgor with respect to the Collateral Investments, any security entitlement
thereto or any securities account in which any such security entitlement may be
carried, other than the Pledgor's rights under this Pledge Agreement as the
beneficial owner of Collateral pledged to and subject to the exclusive dominion
and control (including, without limitation, securities control) of the
Collateral Agent. The Pledgor acknowledges, confirms and agrees that the
Collateral Agent holds a first priority perfected security interest, lien and
security entitlement to the Collateral Investments solely as collateral agent
for the Trustee and the Holders and not as a securities intermediary for the
Pledgor.
SECTION 7. Representations and Warranties. The Pledgor hereby
represents and warrants, as of the date hereof, that:
(a) The execution and delivery by the Pledgor of, and the performance
by the Pledgor of its obligations under, this Pledge Agreement will not
contravene any provision of applicable law or the certificate of incorporation,
bylaws or equivalent organizational instruments of the Pledgor or any material
agreement or other material instrument binding upon the Pledgor or any of its
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subsidiaries or any judgment, order or decree of any governmental body, agency
or court having jurisdiction over the Pledgor or any of its subsidiaries, or
result in the creation or imposition of any Lien on any assets of the Pledgor,
except for the lien and security interests granted under this Pledge Agreement;
no consent, approval, authorization or order of, or qualification with, and no
notice to or filing with, any governmental body or agency or other third party
is required (i) for the performance by the Pledgor of its obligations under this
Pledge Agreement, (ii) for the pledge by the Pledgor of the Collateral pursuant
to this Pledge Agreement or for the execution, delivery or performance of this
Agreement by the Pledgor or (iii) for the perfection or maintenance of the
pledge, assignment and security interest created hereby (including the first
priority nature of such pledge, assignment or security interest), except for the
filing of financing and continuation statements under the Uniform Commercial
Code of applicable jurisdictions which financing statements have been delivered
pursuant to Section 3(g) hereof, or (iv) except for any such consents,
approvals, authorizations or orders required to be obtained by the Collateral
Agent (or the Holders) for reasons other than the consummation of this
transaction, for the exercise by the Collateral Agent of the rights provided for
in this Pledge Agreement or the remedies in respect of the Collateral pursuant
to this Pledge Agreement.
(b) The Pledgor is the legal and beneficial owner of the Collateral,
free and clear of any Lien or claims of any Person (except for the lien and
security interests granted under this Pledge Agreement). No effective financing
statement or other instrument similar in effect covering all or any part of the
Collateral is on file in any public office other than the financing statements,
if any, to be filed pursuant to this Pledge Agreement.
(c) This Pledge Agreement has been duly authorized, validly executed
and delivered by the Pledgor and (assuming the due authorization and valid
execution and delivery of this Pledge Agreement by each of the Trustee, the
Collateral Agent and the Securities Intermediary and enforceability of the
Pledge Agreement against each of the Trustee, the Collateral Agent and the
Securities Intermediary in accordance with its terms) constitutes a valid and
binding agreement of the Pledgor, enforceable against the Pledgor in accordance
with its terms, except as (i) the enforceability hereof may be limited by
bankruptcy, insolvency, fraudulent conveyance, preference, reorganization,
moratorium or similar laws now or hereafter in effect relating to or affecting
the rights or remedies of creditors generally, (ii) the availability of
equitable remedies may be limited by equitable principles of general
applicability and the discretion of the court before which any proceeding
therefor may be brought, (iii) the exculpation provisions and rights to
indemnification hereunder may be limited by U.S. federal and state securities
laws and public policy considerations and (iv) the waiver of rights and defenses
contained in Section 13(b), Section 17.11 and Section 17.15 hereof may be
limited by applicable law.
(d) Upon the delivery to the Collateral Agent of the Collateral in
accordance with the terms hereof and the filing of the financing statements
referred to in Section 3(g) hereof, the pledge of and grant of a security
interest in the Collateral securing the payment of the Obligations for the
benefit of the Trustee and the Holders will constitute a valid, first priority,
perfected security interest in such Collateral (except, with respect to
proceeds, only to the extent permitted by Section 9-315 of the N.Y. Uniform
Commercial Code), enforceable as such against all creditors of the Pledgor and
any persons purporting to purchase any of the Collateral from the Pledgor other
than as permitted by the Indenture. Upon filing of the financing statements
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described in Section 3(g) hereof, all filings and other actions necessary or
desirable to perfect and protect such security interest will have been duly
taken.
(e) There are no legal or governmental proceedings pending or, to the
best of the Pledgor's knowledge, threatened to which the Pledgor or any of its
subsidiaries is a party or to which any of the properties of the Pledgor or any
of its subsidiaries is subject that would materially adversely affect the power
or ability of the Pledgor to perform its obligations under this Pledge Agreement
or to consummate the transactions contemplated hereby.
(f) The pledge of the Collateral pursuant to this Pledge Agreement is
not prohibited by law or governmental regulation (including, without limitation,
Regulations T, U and X of the Board of Governors of the Federal Reserve System)
applicable to the Pledgor.
(g) No Event of Default exists.
(h) The Pledgor is a corporation duly organized and validly existing
under the laws of the State of Delaware. The Pledgor's name as it appears in
official filings in the State of Delaware is VEECO INSTRUMENTS INC. The
Pledgor's organizational identification number issued by the State of Delaware
is 2204392.
SECTION 8. Further Assurances. The Pledgor will, promptly upon the
request by the Collateral Agent (which request the Collateral Agent may submit
at the direction of the Holders of a majority in aggregate principal amount of
the Notes then outstanding), execute and deliver or cause to be executed and
delivered, or use its reasonable best efforts to procure, all assignments,
instruments and other documents, deliver any instruments to the Collateral Agent
and take any other actions that are necessary or desirable to perfect, continue
the perfection of, or protect the first priority of the Trustee's security
interest in and to the Collateral, to protect the Collateral against the rights,
claims or interests of third persons (other than any such rights, claims or
interests created by or arising through the Collateral Agent) or to effect the
purposes of this Pledge Agreement. Without limiting the generality of the
foregoing, the Pledgor will, if any Collateral shall be evidenced by a
promissory note or other instrument, deliver to the Collateral Agent in pledge
hereunder such note or instrument duly indorsed and accompanied by duly executed
instruments of transfer or assignment; and execute and file such financing or
continuation statements, or amendments thereto, and such other instruments or
notices, as may be necessary, or as the Collateral Agent may reasonably request,
in order to perfect and preserve the pledge, assignment and first priority
perfected security interest granted or purported to be granted hereby. The
Pledgor will promptly pay all reasonable costs incurred in connection with any
of the foregoing within 45 days of receipt of an invoice therefor. The Pledgor
also agrees, whether or not requested by the Collateral Agent, to use its
reasonable best efforts to perfect or continue the perfection of, or to protect
the first priority of, the Trustee's security interest in and to the Collateral,
and to protect the Collateral against the rights, claims or interests of third
persons (other than any such rights, claims or interests created by or arising
through the Collateral Agent).
SECTION 9. Covenants. The Pledgor covenants and agrees with the
Collateral Agent, Trustee and the Holders that from and after the date of this
Pledge Agreement until the Termination Date:
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(a) it will not (i) (and will not purport to) sell or otherwise dispose
of, or grant any option or warrant with respect to, any of the Collateral nor
(ii) create or permit to exist any Lien upon or with respect to any of the
Collateral (except for the liens and security interests granted under this
Pledge Agreement and any Lien created by or arising through the Collateral
Agent) and at all times will be the sole beneficial owner of the Collateral;
(b) it will not (i) enter into any agreement or understanding that
restricts or inhibits or purports to restrict or inhibit the Trustee's or the
Collateral Agent's rights or remedies hereunder, including, without limitation,
the Collateral Agent's right to sell or otherwise dispose of the Collateral or
(ii) fail to pay or discharge any tax, assessment or levy of any nature with
respect to its beneficial interest in the Collateral not later than three
Business Days prior to the date of any proposed sale under any judgment, writ or
warrant of attachment with respect to the Collateral;
(c) it will maintain its jurisdiction of organization in the State of
Delaware, or upon 30 days' prior written notice to the Collateral Agent, in
another jurisdiction where all actions required by Sections 3(g) and 8 have been
taken with respect to the Collateral;
(d) it will, and will cause the Trustee and the Collateral Agent to,
execute and deliver on or prior to any Date of Delivery, a Supplement to this
Pledge Agreement substantially in the form of Exhibit B hereto, and take such
other actions as shall be necessary to grant to the Collateral Agent, for the
benefit of the Trustee and the ratable benefit of the Holders, a valid
assignment of and security interest in the Additional Pledged Securities and the
related security entitlements; and
(e) it will not, and acknowledges that it is not authorized to, file
any financing statement or amendment or termination statement with respect to
any financing statement in favor of the Collateral Agent without the prior
written consent of Collateral Agent and agrees that it will not do so without
the prior written consent of Collateral Agent, subject to the Pledgor's rights
under Section 9-509(d)(2) of the N.Y. Uniform Commercial Code.
SECTION 10. Power of Attorney; Agent May Perform.
(a) Subject to the terms of this Pledge Agreement, the Pledgor hereby
appoints and constitutes the Collateral Agent as the Pledgor's attorney-in-fact
(with full power of substitution) to exercise to the fullest extent permitted by
law all of the following powers upon and at any time after the occurrence and
during the continuance of an Event of Default:
(i) collection of proceeds of any Collateral;
(ii) conveyance of any item of Collateral to any purchaser
thereof;
(iii) giving of any notices or recording of any Liens
hereof; and
(iv) paying or discharging taxes or Liens levied or placed
upon the Collateral, the legality or validity thereof
and the amounts necessary to discharge the same to be
determined by the Collateral Agent in its sole
reasonable discretion, and such payments made by the
Collateral Agent to become part of the Obligations
secured hereby, due and payable immediately upon
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demand. The Collateral Agent's authority under this
Section 10 shall include, without limitation, the
authority to endorse and negotiate any checks or
instruments representing proceeds of Collateral in
the name of the Pledgor, execute and give receipt for
any certificate of ownership or any document
constituting Collateral, transfer title to any item
of Collateral, sign the Pledgor's name on all
financing statements (to the extent permitted by
applicable law) or any other documents necessary or
appropriate to preserve, protect or perfect the
security interest in the Collateral and to file the
same, prepare, file and sign the Pledgor's name on
any notice of Lien (to the extent permitted by
applicable law), and to take any other actions
arising from or necessarily incident to the powers
granted to the Trustee or the Collateral Agent in
this Pledge Agreement. This power of attorney is
coupled with an interest and is irrevocable by the
Pledgor.
(b) If the Pledgor fails to perform any agreement contained herein, the
Collateral Agent may, but is not obligated to, after providing to the Pledgor
notice of such failure and five Business Days to effect such performance, itself
perform, or cause performance of, such agreement, and the expenses of the
Collateral Agent incurred in connection therewith shall be payable by the
Pledgor under Section 14.
SECTION 11. No Assumption of Duties; Reasonable Care. The rights and
powers granted to the Collateral Agent hereunder are being granted in order to
preserve and protect the security interest of the Collateral Agent for the
benefit of the Trustee and the Holders in and to the Collateral granted hereby
and shall not be interpreted to, and shall not impose any duties on, the
Collateral Agent in connection therewith other than those expressly provided
herein or imposed under applicable law. Except as provided by applicable law or
by the Indenture, the Collateral Agent shall be deemed to have exercised
reasonable care in the custody and preservation of the Collateral in its
possession if the Collateral is accorded treatment substantially equal to that
which the Collateral Agent accords similar property held by the Collateral Agent
for similar accounts, it being understood that the Collateral Agent in its
capacity as such
(a) may consult with counsel of its selection and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon and
(b) shall not have any responsibility for
(i) ascertaining or taking action with respect to calls,
conversions, exchanges, maturities or other matters
relative to any Collateral, whether or not the
Collateral Agent has or is deemed to have knowledge
of such matters,
(ii) taking any necessary steps for the existence,
enforceability or perfection of any security interest
of the Collateral Agent or to preserve rights against
any parties with respect to any Collateral or
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(iii) except as otherwise set forth in Section 5, investing
or reinvesting any of the Collateral.
In no event shall the Collateral Agent be liable for the existence,
validity, enforceability or perfection of any security interest of the
Collateral Agent, or for special indirect or consequential damages or lost
profits or loss of business, arising in connection with this Agreement.
SECTION 12. Indemnity. The Pledgor shall fully indemnify, hold harmless
and defend the Collateral Agent and its directors and officers from and against
any and all claims, losses, actions, obligations, liabilities and expenses,
including reasonable defense costs, reasonable investigative fees and costs, and
reasonable legal fees, expenses, and damages arising from the Collateral Agent's
appointment and performance as Collateral Agent under this Pledge Agreement,
except to the extent that such claim, action, obligation, liability or expense
is directly caused by the bad faith, gross negligence or willful misconduct of
such indemnified person. The provisions of this Section 12 shall survive
termination of this Pledge Agreement and the resignation and removal of the
Collateral Agent.
SECTION 13. Remedies upon Event of Default. Subject to Section 6(b), if
any Event of Default under the Indenture shall have occurred and be continuing
and the Notes shall have been accelerated in accordance with the provisions of
the Indenture:
(a) The Trustee, the Collateral Agent and the Holders shall have, in
addition to all other rights given by law or by this Pledge Agreement or the
Indenture, all of the rights and remedies with respect to the Collateral of a
secured party upon default under the N.Y. Uniform Commercial Code (whether or
not the N.Y. Uniform Commercial Code applies to the affected Collateral) at that
time. In addition, with respect to any Collateral that shall then be in or shall
thereafter come into the possession or custody of the Collateral Agent, the
Collateral Agent may and, at the written direction of the Trustee or the Holders
of a majority in aggregate principal amount of the Notes then outstanding, shall
appoint a broker or other expert to sell or cause the same to be sold at any
broker's board or at public or private sale, in one or more sales or lots, at
such price or prices such broker or other expert may deem commercially
reasonable, for cash or on credit or for future delivery, without assumption of
any credit risk. The purchaser of any or all Collateral so sold shall thereafter
hold the same absolutely, free from any claim, encumbrance or right of any kind
whatsoever created by or through the Pledgor. Unless any of the Collateral
threatens, in the reasonable judgment of the Collateral Agent, to decline
speedily in value, the Collateral Agent will give the Pledgor reasonable notice
of the time and place of any public sale thereof, or of the time after which any
private sale or other intended disposition is to be made. Any sale of the
Collateral conducted in conformity with reasonable commercial practices of
banks, insurance companies, commercial finance companies, or other financial
institutions disposing of property similar to the Collateral shall be deemed to
be commercially reasonable. Any requirements of reasonable notice shall be met
if notice of the time and place of any public sale or the time after which any
private sale is to be made is given to the Pledgor as provided in Section 17.1
hereof at least ten (10) days before the time of the sale or disposition. The
Collateral Agent or any Holder may, in its own name or in the name of a designee
or nominee, buy any of the Collateral at any public sale and, if permitted by
applicable law, at any private sale. The Collateral Agent shall not be obligated
to make any sale of Collateral regardless of notice of sale
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having been given. The Collateral Agent may adjourn any public or private sale
from time to time by announcement at the time and place fixed therefor, and such
sale may, without further notice, be made at the time and place to which it was
so adjourned. All expenses (including court costs and reasonable attorneys'
fees, expenses and disbursements) of, or incident to, the enforcement of any of
the provisions hereof shall be recoverable from the proceeds of the sale or
other disposition of the Collateral.
(b) The Pledgor further agrees to use its reasonable best efforts to do
or cause to be done all such other acts as may be necessary to make such sale or
sales of all or any portion of the Collateral pursuant to this Section 13 valid
and binding and in compliance with any and all other applicable requirements of
law. The Pledgor further agrees that a breach of any of the covenants contained
in this Section 13 will cause irreparable injury to the Trustee and the Holders,
that the Trustee and the Holders have no adequate remedy at law in respect of
such breach and, as a consequence, that each and every covenant contained in
this Section 13 shall be specifically enforceable against the Pledgor, and the
Pledgor hereby waives and agrees not to assert any defenses against an action
for specific performance of such covenants except for a defense that no Event of
Default has occurred.
(c) All cash proceeds received by the Collateral Agent in respect of
any sale of, collection from, or other realization upon all or any part of the
Collateral may, in the discretion of the Collateral Agent, be held by the
Collateral Agent as collateral for, and/or then or at any time thereafter
applied (after payment of any amounts payable to the Collateral Agent or the
Trustee pursuant to Section 14) by the Collateral Agent for the ratable benefit
of the Holders first against any accrued and unpaid interest on the Notes and
thereafter against the remaining Obligations. Any surplus of such cash or cash
proceeds held by the Collateral Agent and remaining after payment in full of all
of the Obligations shall be paid over to the Pledgor.
(d) The Collateral Agent may, but is not obligated to, exercise any and
all rights and remedies of the Pledgor in respect of the Collateral.
(e) Subject to and in accordance with the terms of this Pledge
Agreement, all payments received by the Pledgor in respect of the Collateral
shall be received in trust for the benefit of the Collateral Agent, shall be
segregated from other funds of the Pledgor and shall be forthwith paid over to
the Collateral Agent in the same form as so received (with any necessary
indorsement).
(f) The Collateral Agent may, without notice to the Pledgor except as
required by law and at any time or from time to time, charge, set-off and
otherwise apply all or any part of the Obligations against the Collateral
Account or any part thereof.
(g) The Pledgor shall cease to be entitled to direct the investment of
amounts held in the Collateral Account under Section 5 hereof and the Collateral
Agent shall not accept any direction from the Pledgor to invest amounts held in
the Collateral Account.
SECTION 14. Fees and Expenses. Pledgor agrees to pay to Collateral
Agent the fees as may be agreed upon from time to time in writing. The Pledgor
will upon demand pay to the Trustee and the Collateral Agent the amount of any
and all expenses, including, without limitation, the reasonable fees, expenses
and disbursements of counsel, experts and agents
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retained by the Trustee and the Collateral Agent, that the Trustee and the
Collateral Agent may incur in connection with
(a) the review, negotiation and administration of this Pledge
Agreement,
(b) the custody or preservation of, or the sale of, collection from, or
other realization upon, any of the Collateral,
(c) the exercise or enforcement of any of the rights of the Collateral
Agent, the Trustee and the Holders hereunder or
(d) the failure by the Pledgor to perform or observe any of the
provisions hereof.
SECTION 15. Security Interest Absolute. All rights of the Collateral
Agent, the Trustee and the Holders and security interests hereunder, and all
obligations of the Pledgor hereunder, shall be absolute and unconditional
irrespective of:
(a) any lack of validity or enforceability of the Indenture or any
other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations, or any other amendment or waiver
of or any consent to any departure from the Indenture;
(c) any exchange, surrender, release or non-perfection of any Liens on
any other collateral for all or any of the Obligations;
(d) any change, restructuring or termination of the corporate structure
or the existence of the Pledgor or any of its subsidiaries;
(e) to the extent permitted by applicable law, any other circumstance
which might otherwise constitute a defense available to, or a discharge of, the
Pledgor in respect of the Obligations or of this Pledge Agreement; or
(f) any manner of application of other collateral, or proceeds thereof,
to all or any item of the Obligations, or any manner of sale or other
disposition of any item of Collateral for all or any of the Obligations.
SECTION 16. Securities Intermediary's Representations, Warranties and
Covenants. The Securities Intermediary represents and warrants that it is as of
the date hereof, and it agrees that for so long as it maintains the Collateral
Account and acts as the Securities Intermediary pursuant to this Pledge
Agreement it shall be a securities intermediary and a FRBB Member. In
furtherance of the foregoing, the Securities Intermediary hereby:
(a) represents and warrants that it is a commercial bank that in the
ordinary course of its business maintains securities accounts for others and is
acting in that capacity hereunder and with respect to the Collateral Account;
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(b) represents and warrants that it maintains the FRBB Account with the
FRBB;
(c) agrees that the Collateral Account shall be an account to which
financial assets may be credited, and undertakes to treat the Collateral Agent
as entitled to exercise rights that comprise (and entitled to the benefits of)
such financial assets, and entitled to exercise the rights of an entitlement
holder in the manner contemplated by the N.Y. Uniform Commercial Code;
(d) hereby represents that, subject to applicable law, it has not
granted, and covenants that so long as it acts as a securities intermediary
hereunder it shall not grant, control (including without limitation, securities
control) over or with respect to any Collateral credited to any Collateral
Account from time to time to any other Person other than the Collateral Agent;
(e) covenants that it shall not, subject to applicable law, knowingly
take any action inconsistent with, and represents and covenants that it is not
and so long as this Pledge Agreement remains in effect will not knowingly
become, party to any agreement the terms of which are inconsistent with, the
provisions of this Pledge Agreement;
(f) agrees that any item of property credited to the Collateral Account
shall be treated as a financial asset;
(g) agrees that any item of Collateral credited to the Collateral
Account shall not be subject to any security interest, Lien or right of set-off
in favor of it as securities intermediary, except as may be expressly permitted
under the Indenture and this Pledge Agreement;
(h) agrees to maintain the Collateral Account and maintain appropriate
books and records in respect thereof in accordance with its usual procedures and
subject to the terms of this Pledge Agreement; and
(i) agrees that, with respect to any Collateral that constitutes a
security entitlement, it shall comply with the provisions of Section 3(c)(i) or
(ii) of this Pledge Agreement and, with respect to any Collateral that
constitutes a securities account, it shall comply with the provisions of Section
3(c)(i) or (ii) of this Pledge Agreement with respect to all security
entitlements carried in such securities account.
SECTION 17. Securities Intermediary's Jurisdiction. The parties hereby
agree that, notwithstanding the location of the office of the Securities
Intermediary at which the Collateral Account is maintained, the Securities
Intermediary's jurisdiction for purposes of Section 8-110(e) of the N.Y. Uniform
Commercial Code and Section 357.11 of the Treasury Regulations or the
corresponding U.S. federal regulations as they pertain to this Pledge Agreement,
the Collateral Account and the security entitlements relating thereto, shall be
the State of New York.
SECTION 18. Miscellaneous Provisions.
18.1 Notices. Any notice, approval, direction, consent or other
communication shall be sufficiently given if in writing and delivered in person
or mailed by first class mail, commercial courier service or telecopier
communication, addressed as follows:
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if to the Pledgor:
Veeco Instruments Inc.
100 Sunnyside Boulevard
Woodbury, New York 11797
Attention: General Counsel
Telecopier No.: (516) 677-0380
if to the Collateral Agent:
State Street Bank and Trust Company, N.A.,
61 Broadway, 15th Floor
New York, New York, 10006
Attention: Corporate Trust Administration (Veeco Instruments
Convertible Subordinated Notes Due 2008)
Telecopier No.: (212) 612-3202
if to the Trustee:
State Street Bank and Trust Company, N.A.,
61 Broadway, 15th Floor
New York, New York, 10006
Attention: Corporate Trust Administration (Veeco Instruments
Convertible Subordinated Notes Due 2008)
Telecopier No.: (212) 612-3202
if to the Securities Intermediary:
State Street Bank and Trust Company
Two Avenue de Lafayette, 6th Floor
Boston, Massachusetts 02110
Attention: Corporate Trust Administration (Veeco Instruments
Convertible Subordinated Notes Due 2008)
Telecopier No.: (617) 662-1463
or, as to any such party, at such other address as shall be designated by such
party in a written notice to each other party complying as to delivery with the
terms of this Section. All such notices and other communications shall be deemed
to have been duly given: at the time delivered by hand, if personally delivered;
three Business Days after being deposited in the mail, postage prepaid, if
mailed; when receipt is confirmed, if telecopied; and on the next Business Day
if timely delivered to an air courier guaranteeing overnight delivery.
18.2 No Adverse Interpretation of Other Agreements. This Pledge
Agreement may not be used to interpret another pledge, security or debt
agreement of the Pledgor or any subsidiary thereof. No such pledge, security or
debt agreement (other than the Indenture) may be used to interpret this Pledge
Agreement.
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18.3 Severability. The provisions of this Pledge Agreement are
severable, and if any clause or provision shall be held invalid, illegal or
unenforceable in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect in that jurisdiction only such clause or
provision, or part thereof, and shall not in any manner affect such clause or
provision in any other jurisdiction or any other clause or provision of this
Pledge Agreement in any jurisdiction.
18.4 Headings. The headings in this Pledge Agreement have been inserted
for convenience of reference only, are not to be considered a part hereof and
shall in no way modify or restrict any of the terms or provisions hereof.
18.5 Counterpart Originals. This Pledge Agreement may be signed in two
or more counterparts, each of which shall be deemed an original, but all of
which shall together constitute one and the same agreement.
18.6 Benefits of Pledge Agreement. Nothing in this Pledge Agreement,
express or implied, shall give to any Person, other than the parties hereto and
their successors hereunder, and the Holders, any benefit or any legal or
equitable right, remedy or claim under this Pledge Agreement.
18.7 Amendments, Waivers and Consents. Any amendment or waiver of any
provision of this Pledge Agreement and any consent to any departure by the
Pledgor, the Trustee or the Collateral Agent from any provision of this Pledge
Agreement shall be effective only if made or duly given in compliance with all
of the terms and provisions of the Indenture, and none of the Trustee, the
Collateral Agent, the Pledgor, or any Holder shall be deemed, by any act, delay,
indulgence, omission or otherwise, to have waived any right or remedy hereunder
or to have acquiesced in any default or Event of Default or in any breach of any
of the terms and conditions hereof. Failure of the Trustee, the Pledgor, the
Collateral Agent or any Holder to exercise, or delay in exercising, any right,
power or privilege hereunder shall not preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. A waiver by the
Trustee, the Pledgor, the Collateral Agent or any Holder of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right or
remedy that the Trustee, the Pledgor, the Collateral Agent or such Holder would
otherwise have on any future occasion. The rights and remedies herein provided
are cumulative, may be exercised singly or concurrently and are not exclusive of
any rights or remedies provided by law.
18.8 [RESERVED]
18.9 Continuing Security Interest; Termination.
(a) This Pledge Agreement shall create a continuing first priority
perfected security interest in and to the Collateral and shall, unless otherwise
provided in the Indenture or in this Pledge Agreement, remain in full force and
effect until the Termination Date. This Pledge Agreement shall be binding upon
the parties hereto and their respective transferees, successors and assigns, and
shall inure, together with the rights and remedies of the Trustee and the
Collateral Agent hereunder, to the benefit of the Trustee, the Collateral Agent,
the Pledgor, the Holders and their respective successors, transferees and
assigns.
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(b) Upon the Termination Date, the pledge, assignment and security
interest granted hereby shall terminate and all rights to the Collateral shall
revert to the Pledgor. At such time, the Collateral Agent shall, in accordance
with the Pledgor's instructions, promptly reassign and redeliver to the Pledgor
all of the Collateral hereunder that has not been sold, disposed of, retained or
applied by the Collateral Agent in accordance with the terms of this Pledge
Agreement and the Indenture and execute and deliver to the Pledgor such
documents as the Pledgor shall reasonably request to evidence such termination.
Such reassignment and redelivery shall be without warranty by or recourse to the
Collateral Agent or the Trustee in its capacity as such, except as to the
absence of any Liens on the Collateral created by or arising through the
Collateral Agent or the Trustee, and shall be at the reasonable expense of the
Pledgor.
18.10 Survival Provisions. All representations, warranties and
covenants contained herein shall survive the execution and delivery of this
Pledge Agreement, and shall terminate only upon the termination of this Pledge
Agreement. The obligations of the Pledgor under Sections 12 and 14 hereof and
the obligations of the Collateral Agent under Section 17.9(b) hereof shall
survive the termination of this Pledge Agreement.
18.11 Waivers. The Pledgor waives presentment and demand for payment of
any of the Obligations, protest and notice of dishonor or default with respect
to any of the Obligations, and all other notices to which the Pledgor might
otherwise be entitled, except as otherwise expressly provided herein or in the
Indenture.
18.12 Authority of the Collateral Agent.
(a) The Collateral Agent shall have and be entitled to exercise all
powers hereunder that are specifically granted to the Collateral Agent by the
terms hereof, together with such powers as are reasonably incident thereto. The
Collateral Agent may perform any of its duties hereunder or in connection with
the Collateral by or through agents or attorneys, shall not be responsible for
any misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder and shall be entitled to retain counsel and to act in
reliance upon the advice of counsel concerning all such matters. Except as
otherwise expressly provided in this Pledge Agreement or the Indenture, neither
the Collateral Agent nor any director, officer, employee, attorney or agent of
the Collateral Agent shall be liable to the Pledgor for any action taken or
omitted to be taken by the Collateral Agent, in its capacity as Collateral
Agent, hereunder, except for its own bad faith, gross negligence or willful
misconduct, and the Collateral Agent shall not be responsible for the validity,
effectiveness or sufficiency hereof or of any document or security furnished
pursuant hereto. The Collateral Agent and its directors, officers, employees,
attorneys and agents shall be entitled to rely conclusively on any
communication, instrument or document believed by it or them to be genuine and
correct and to have been signed or sent by the proper Person or Persons. The
Collateral Agent shall have no duty to cause any financing statement or
continuation statement to be filed in respect of the Collateral.
(b) The Pledgor acknowledges that the rights and responsibilities of
the Collateral Agent under this Pledge Agreement with respect to any action
taken by the Collateral Agent or the exercise or non-exercise by the Collateral
Agent of any option, right, request, judgment or other right or remedy provided
for herein or resulting or arising out of this Pledge Agreement shall, as
between the Collateral Agent and the Holders, be governed by the Indenture and
by such other
21
<Page>
agreements with respect thereto as may exist from time to time among them, but,
as between the Collateral Agent and the Pledgor, the Collateral Agent shall be
conclusively presumed to be acting as agent for the Trustee and the Holders with
full and valid authority so to act or refrain from acting, and the Pledgor shall
not be obligated or entitled to make any inquiry respecting such authority.
18.13 Final Expression. This Pledge Agreement, together with the
Indenture and any other agreement executed in connection herewith, is intended
by the parties as a final expression of this Pledge Agreement and is intended as
a complete and exclusive statement of the terms and conditions thereof.
18.14 Rights of Holders. No Holder shall have any independent rights
hereunder other than those rights granted to individual Holders pursuant to
Sections 6.05, 6.06 and 6.07 of the Indenture; provided that nothing in this
subsection shall limit any rights granted to the Trustee under the Notes or the
Indenture.
18.15 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL;
WAIVER OF DAMAGES.
(a) THIS PLEDGE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT THE
VALIDITY OR PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR REMEDIES
HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A
JURISDICTION OTHER THAN THE STATE OF NEW YORK, AND, EXCEPT TO THE EXTENT THAT
THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR REMEDIES
HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A
JURISDICTION OTHER THAN THE STATE OF NEW YORK, ANY DISPUTE ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
BETWEEN THE PLEDGOR, THE TRUSTEE, THE COLLATERAL AGENT AND THE HOLDERS IN
CONNECTION WITH THIS PLEDGE AGREEMENT, AND WHETHER ARISING IN CONTRACT, TORT,
EQUITY OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK. NOTWITHSTANDING THE FOREGOING, THE MATTERS IDENTIFIED IN 31 C.F.R.
SECTIONS 357.10 AND 357.11 (AS IN EFFECT ON THE DATE OF THIS PLEDGE AGREEMENT)
SHALL BE GOVERNED SOLELY BY THE LAWS SPECIFIED THEREIN AND THE MATTERS
IDENTIFIED IN SECTION 9305(a)(3) OF THE N.Y. UNIFORM COMMERCIAL CODE WILL BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
(b) THE PLEDGOR HEREBY WAIVES PERSONAL SERVICE OF PROCESS IN ANY SUIT,
ACTION OR PROCEEDING WITH RESPECT TO THIS PLEDGE AGREEMENT AND FOR ACTIONS
BROUGHT UNDER THE U.S. FEDERAL OR STATE SECURITIES LAWS BROUGHT IN ANY FEDERAL
OR STATE COURT LOCATED IN THE CITY OF NEW YORK (EACH A "NEW YORK COURT") AND
CONSENTS THAT ALL SERVICE OF PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING
SHALL BE MADE BY REGISTERED MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO
22
<Page>
THE PLEDGOR AT THE ADDRESS INDICATED IN SECTION 17.1. EACH OF THE PARTIES HERETO
SUBMITS TO THE JURISDICTION OF ANY NEW YORK COURT AND TO THE COURTS OF ITS
CORPORATE DOMICILE WITH RESPECT TO ANY ACTIONS BROUGHT AGAINST IT AS DEFENDANT
IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF, CONNECTED WITH, RELATED TO, OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THE PLEDGOR, THE TRUSTEE, THE
COLLATERAL AGENT AND THE HOLDERS IN CONNECTION WITH THIS PLEDGE AGREEMENT, AND
EACH OF THE PARTIES HERETO WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE LAYING
OF VENUE, INCLUDING ANY PLEADING OF FORUM NON CONVENIENS, WITH RESPECT TO ANY
SUCH ACTION AND WAIVES ANY RIGHT TO WHICH IT MAY BE ENTITLED ON ACCOUNT OF PLACE
OF RESIDENCE OR DOMICILE.
(c) THE PLEDGOR AGREES THAT THE TRUSTEE SHALL, IN ITS CAPACITY AS
TRUSTEE OR IN THE NAME AND ON BEHALF OF ANY HOLDER, HAVE THE RIGHT, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, TO PROCEED AGAINST THE PLEDGOR OR THE
COLLATERAL IN A COURT IN ANY LOCATION REASONABLY SELECTED IN GOOD FAITH (AND
HAVING PERSONAL OR IN REM JURISDICTION OVER THE PLEDGOR OR THE COLLATERAL, AS
THE CASE MAY BE) TO ENABLE THE TRUSTEE TO REALIZE ON SUCH COLLATERAL, OR TO
ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF THE TRUSTEE. THE
PLEDGOR AGREES THAT IT WILL NOT ASSERT ANY COUNTERCLAIMS, SETOFFS OR CROSSCLAIMS
IN ANY PROCEEDING BROUGHT BY THE TRUSTEE TO REALIZE ON SUCH PROPERTY OR TO
ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE TRUSTEE, EXCEPT FOR SUCH
COUNTERCLAIMS, SETOFFS OR CROSSCLAIMS WHICH, IF NOT ASSERTED IN ANY SUCH
PROCEEDING, COULD NOT OTHERWISE BE BROUGHT OR ASSERTED.
(d) THE PLEDGOR AGREES THAT NEITHER ANY HOLDER NOR (EXCEPT AS OTHERWISE
PROVIDED IN THIS PLEDGE AGREEMENT OR THE INDENTURE) THE COLLATERAL AGENT IN ITS
CAPACITY AS COLLATERAL AGENT SHALL HAVE ANY LIABILITY TO THE PLEDGOR (WHETHER
ARISING IN TORT, CONTRACT OR OTHERWISE) FOR LOSSES SUFFERED BY THE PLEDGOR IN
CONNECTION WITH, ARISING OUT OF, OR IN ANY WAY RELATED TO, THE TRANSACTIONS
CONTEMPLATED AND THE RELATIONSHIP ESTABLISHED BY THIS PLEDGE AGREEMENT, OR ANY
ACT, OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH, UNLESS IT IS
DETERMINED BY A FINAL AND NONAPPEALABLE JUDGMENT OF A COURT THAT IS BINDING ON
THE TRUSTEE OR SUCH HOLDER, AS THE CASE MAY BE, THAT SUCH LOSSES WERE THE RESULT
OF ACTS OR OMISSIONS ON THE PART OF THE COLLATERAL AGENT OR SUCH HOLDERS, AS THE
CASE MAY BE, CONSTITUTING BAD FAITH, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(e) TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PLEDGOR WAIVES THE
POSTING OF ANY BOND OTHERWISE REQUIRED OF THE TRUSTEE, THE COLLATERAL AGENT OR
ANY HOLDER IN CONNECTION WITH ANY JUDICIAL PROCESS OR PROCEEDING TO ENFORCE ANY
JUDGMENT OR OTHER COURT
23
<Page>
ORDER PERTAINING TO THIS PLEDGE AGREEMENT OR ANY RELATED AGREEMENT OR DOCUMENT
ENTERED IN FAVOR OF THE TRUSTEE, THE COLLATERAL AGENT OR ANY HOLDER, OR TO
ENFORCE BY SPECIFIC PERFORMANCE, TEMPORARY RESTRAINING ORDER OR PRELIMINARY OR
PERMANENT INJUNCTION, THIS PLEDGE AGREEMENT OR ANY RELATED AGREEMENT OR DOCUMENT
BETWEEN THE PLEDGOR, ON THE ONE HAND, AND THE TRUSTEE, THE COLLATERAL AGENT
AND/OR THE HOLDERS, ON THE OTHER HAND.
18.16 Effectiveness. This Pledge Agreement shall become effective upon
the effectiveness of the Indenture.
24
<Page>
IN WITNESS WHEREOF, the Pledgor, the Trustee and the Collateral Agent
have each caused this Pledge Agreement to be duly executed and delivered as of
the date first above written.
Pledgor:
VEECO INSTRUMENTS INC.
By: /s/ John F. Rein, Jr.
----------------------------------------------
Name: John F. Rein, Jr.
Title: Executive Vice President, Chief
Financial Officer and Secretary
Trustee:
STATE STREET BANK AND TRUST COMPANY, N.A.,
as Trustee
By: /s/ Jean Clarke
----------------------------------------------
Name: Jean Clarke
Title: Assistant Vice President
Collateral Agent:
STATE STREET BANK AND TRUST COMPANY, N.A.,
as Collateral Agent
By: /s/ Jean Clarke
----------------------------------------------
Name: Jean Clarke
Title: Assistant Vice President
Securities Intermediary:
STATE STREET BANK AND TRUST COMPANY,
as Securities Intermediary
By: /s/ Jean Clarke
----------------------------------------------
Name: Jean Clarke
Title: Assistant Vice President
<Page>
SCHEDULE I
<Table>
<Caption>
PLEDGED SECURITIES
Original Principal/
Description of Debt CUSIP No(s). Final Maturity Interest Amount Cost at Closing Time
------------------- ------------ -------------- --------------- --------------------
Treasury Bill 912795JZ5 06/20/02 4,125,000 4,088,705.73
Treasury Coupon Strip 912833FR6 11/15/02 4,125,000 4,057,143.75
Treasury Coupon Strip 912833FS4 05/15/03 4,125,000 3,981,161.25
Treasury Principal Strip 912820DJ3 11/15/03 4,125,000 3,898,042.50
Treasury Principal Strip 912820BJ5 05/15/04 4,125,000 3,803,415.00
Treasury Principal Strip 912803AB9 11/15/04 4,125,000 3,690,967.50
==============
$23,519,435.73
</Table>
I-1
<Page>
EXHIBIT A
[Letterhead of Ernst & Young LLP]
Report of Independent Accountants
To the Management of
Veeco Instruments Inc.
In our opinion, the assertions of Veeco Instruments Inc. referred to above are
fairly stated, in all material respects.
A-1
<Page>
EXHIBIT B
[Form of Supplement to the Pledge Agreement]
SUPPLEMENT NO. __ dated as of _________, 2001, to the COLLATERAL PLEDGE
AND SECURITY AGREEMENT dated as of December 21, 2001 (as supplemented from time
to time, the "Pledge Agreement") among Veeco Instruments Inc., a Delaware
corporation (the "Pledgor"), State Street Bank and Trust Company, N.A., a
national banking association, as trustee (in such capacity, the "Trustee") for
the holders (the "Holders") of the Notes issued by the Pledgor under the
Indenture referred to below, State Street Bank and Trust Company, N.A., a
national banking association, as collateral agent (in such capacity, the
"Collateral Agent") and State Street Bank and Trust Company, a Massachusetts
trust company, as securities intermediary. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Pledge Agreement.
WHEREAS, the Pledgor and Merrill Lynch, Pierce, Fenner & Smith
Incorporated and Salomon Smith Barney. (collectively, the "Initial Purchasers")
are parties to a Purchase Agreement dated December 18, 2001 (the "Purchase
Agreement"), pursuant to which the Pledgor have granted the Initial Purchasers
an overallotment option to purchase up to $20 million aggregate principal amount
of the Pledgor's 4 1/8% Convertible Subordinated Notes due 2008 (the "Notes");
WHEREAS, the Pledgor and the Trustee have entered into that certain
indenture dated as of December 21, 2001 (as amended, restated, supplemented or
otherwise modified from time to time, the "Indenture"), pursuant to which the
Issuers are issuing the Notes on the date hereof;
WHEREAS, pursuant to the Indenture, the Pledgor is required to
purchase, or cause the purchase of, and pledge to the Collateral Agent for the
benefit of the Trustee and the Holders, on the relevant Date of Delivery (as
defined in the Purchase Agreement), Pledged Securities in an amount that will be
sufficient upon receipt of scheduled interest and principal payments of such
securities, in the written opinion of Ernst & Young LLP or another nationally
recognized firm of independent public accountants selected by the Pledgor and
delivered to the Trustee, to provide for payment in full of the first six
scheduled interest payments due on the Notes;
WHEREAS, the Pledgor, the Trustee and the Collateral Agent have entered
into the Pledge Agreement, pursuant to which the Pledgor has previously pledged
certain Pledged Securities to the Collateral Agent for the benefit of the
Holders in connection with the purchase by the Initial Purchasers of $200
million aggregate principal amount of Notes;
WHEREAS, the Initial Purchasers have exercised their overallotment
option under the Purchase Agreement to purchase $20 million aggregate principal
amount of Notes;
WHEREAS, it is a condition precedent to the purchase of the Notes by
the Initial Purchasers pursuant to the overallotment option granted in the
Purchase Agreement that the Pledgor apply certain of the proceeds of the
offering of the Notes to purchase the Additional Pledged Securities and deposit
such Additional Pledged Securities into the Collateral Account to be held
therein subject to the terms of the Pledge Agreement and shall have granted the
B-1
<Page>
assignment and security interest and made the pledge and assignment contemplated
by the Pledge Agreement;
NOW, THEREFORE, in consideration of the premises herein contained, and
in order to induce the Initial Purchasers to purchase the Notes, the Pledgor,
the Trustee and the Collateral Agent hereby agree, for the benefit of the
Initial Purchasers and for the ratable benefit of the Holders, as follows:
SECTION 1. PLEDGE AND GRANT OF SECURITY INTEREST. Pursuant to Section
1.3 of the Pledge Agreement, as security for the prompt and complete payment and
performance when due (whether at the stated maturity, by acceleration or
otherwise) of the Obligations, the Pledgor hereby assigns and pledges to the
Collateral Agent for the benefit of the Trustee and the ratable benefit of the
Holders and hereby grants to the Collateral Agent for the benefit of the Trustee
and for the ratable benefit of the Holders, a lien on and security interest in
all of the Pledgor's right, title and interest in, to and under the following
property: (a) the U.S. Government Obligations identified by CUSIP No. in Part I
of Schedule I hereto (the "Additional Pledged Securities") and the certificates
representing the Additional Pledged Securities, the scheduled payments of
principal and interest thereon which will be sufficient to provide for payment
in full of the first six scheduled interest payments due on the Notes issued in
connection herewith and (b) the security entitlements described in Part II of
Schedule I hereto, with respect to the financial assets described, the
securities intermediary named, and the securities account referred to therein.
The Pledge Agreement is hereby incorporated herein by reference.
SECTION 2. SUPPLEMENT TO SCHEDULE I. The parties hereto agree that
Schedule I to the Pledge Agreement shall be supplemented by Schedule I hereto.
SECTION 3. DEPOSIT OF PROCEEDS FROM THE OFFERING. Pursuant to Section
2(b)(ii) of the Pledge Agreement, on the date hereof, the Pledgor agrees to
transfer, or caused to be transferred, an amount equal to $___________, which
amount shall be sufficient for the Collateral Agent to purchase the Additional
Pledged Securities, by depositing such funds into the Collateral Account. The
Collateral Agent agrees to apply such amount to purchase the Additional Pledged
Securities as contemplated under Section 2(c) of the Pledge Agreement.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE PLEDGOR. The Pledgor
hereby represents and warrants to the Trustee and the Collateral Agent that:
(a) Each of this Supplement and the Pledge Agreement as
supplemented hereby has been duly authorized, validly executed
and delivered by the Pledgor and (assuming the due
authorization and valid execution and delivery of this
Supplement by each of the Trustee and the Collateral Agent)
constitutes a valid and binding agreement of the Pledgor,
enforceable against the Pledgor in accordance with its terms,
except as (i) the enforceability hereof and thereof may be
limited by bankruptcy, insolvency, fraudulent conveyance,
preference, reorganization, moratorium or similar laws now or
hereafter in effect relating to or affecting the rights or
remedies of creditors generally, (ii) the availability of
equitable remedies may be limited by equitable principles of
general applicability and the discretion of the court before
which any proceeding therefor may be
B-2
<Page>
brought, (iii) the exculpation provisions and rights to
indemnification under the Pledge Agreement may be limited by
U.S. federal and state securities laws and public policy
considerations and (iv) the waiver of rights and defenses
contained in Section 13(b), Section 17.11 and Section 17.15 of
the Pledge Agreement may be limited by applicable law and
(b) the representations and warranties of the Pledgor set forth in
Section 7 of the Pledge Agreement are true and correct in all
material respects with the same effect as if made on and as of
the date hereof.
SECTION 5. EXECUTION IN COUNTERPARTS. This Supplement may be signed in
two or more counterparts, each of which shall be deemed an original, but all of
which shall together constitute one and the same agreement. This Supplement
shall become effective when the Collateral Agent shall have received
counterparts of this Supplement that, when taken together, bear the signatures
of the Pledgor, the Trustee and the Collateral Agent.
SECTION 6. EFFECT OF SUPPLEMENT. Except as expressly supplemented
hereby, the Pledge Agreement shall remain in full force and effect.
SECTION 7. GOVERNING LAW. This Supplement shall governed by and
construed in accordance with the laws of the State of New York.
B-3
<Page>
IN WITNESS WHEREOF, the Pledgor, the Trustee and the Collateral Agent
have each caused this Supplement to be duly executed and delivered as of the
date first above written.
Pledgor:
VEECO INSTRUMENTS INC.
By:
----------------------------------------
Name:
Title:
Trustee:
STATE STREET BANK AND TRUST COMPANY, N.A.,
as Trustee
By:
----------------------------------------
Name:
Title:
Collateral Agent:
STATE STREET BANK AND TRUST COMPANY, N.A.,
as Collateral Agent
By:
----------------------------------------
Name:
Title:
Securities Intermediary:
STATE STREET BANK AND TRUST COMPANY,
as Securities Intermediary
By:
----------------------------------------
Name:
B-4
<Page>
SCHEDULE I TO
SUPPLEMENT NO. __ TO
PLEDGE AGREEMENT
<Table>
<Caption>
PLEDGED SECURITIES
Original Principal Cost at Date of
Description of Debt CUSIP No(s). Final Maturity Amount Delivery
- ------------------- ------------ -------------- ------------------ --------
</Table>
B-5
<Page>
EXHIBIT C
STATE STREET BANK AND TRUST COMPANY, N.A.
OFFICER'S CERTIFICATE
Pursuant to Section 3(e) of the Collateral Pledge and Security
Agreement (as supplemented from time to time, the "Pledge Agreement") dated as
of December 21, 2001, among Veeco Instruments Inc., a Delaware corporation (the
"Pledgor"), State Street Bank and Trust Company, N.A., a national banking
association, as trustee (the "Trustee") for the holders of the $200 million
aggregate principal amount (or up to $220 million aggregate principal amount if
the Initial Purchaser's overallotment option is exercised) of 4 1/8% Convertible
Subordinated Notes Due 2008 of the Pledgor, State Street Bank and Trust Company,
N.A., a national banking association, as collateral agent (the "Collateral
Agent") and State Street Bank and Trust Company, a Massachusetts trust company,
as securities intermediary, the undersigned officer of the Collateral Agent, on
behalf of the Collateral Agent, makes the following certifications to the
Pledgor and the Initial Purchasers. Capitalized terms used and not defined in
this Officer's Certificate have the meanings set forth or referred to in the
Pledge Agreement.
1. Substantially contemporaneously with the execution and delivery of
this Officer's Certificate, the Collateral Agent has acquired its security
entitlement to the [Initial Pledged Securities] [the Additional Pledged
Securities identified on Supplement No. __ to the Pledge Agreement] or through a
"securities account" (as defined in Section 8-501(a) of the N.Y. Uniform
Commercial Code) maintained by the Collateral Agent, for value and without
notice of any adverse claim thereto. Without limiting the generality of the
foregoing, the Collateral Account, the Pledged Securities and the other
Collateral are not, and the Collateral Agent's security entitlement to the
Collateral is not, to the actual knowledge of the corporate trust officer having
responsibility for the administration of the Pledge Agreement on behalf of the
Collateral Agent, subject to any Lien granted by or to or arising through or in
favor of any securities intermediary (including, without limitation, State
Street Bank and Trust Company or the Federal Reserve Bank of Boston) through
which the Collateral Agent derives its security entitlement to the Collateral.
2. The Collateral Agent has not knowingly caused or permitted the
Collateral Account or its security entitlement thereto to become subject to any
Lien created by or arising through the Collateral Agent.
C-1
<Page>
IN WITNESS WHEREOF, the undersigned officer has executed this Officer's
Certificate on behalf of State Street Bank and Trust Company, N.A., as
Collateral Agent this 21st day of December, 2001.
STATE STREET BANK AND TRUST
COMPANY, N.A.,
as Collateral Agent
By:
----------------------------------
Name:
Title:
C-2