Exhibit 99.6
EXCHANGE AGENCY AGREEMENT
___________, 2001
HSBC Bank USA
000 0xx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
ALARIS Medical Systems, Inc., a Delaware corporation (the
"Company"), proposes to make an offer (the "Exchange Offer") to exchange all
of its outstanding 11 5/8% Senior Secured Notes due 2006 (the "Senior Notes")
for a like aggregate principal amount of its 11 5/8% Senior Secured Notes due
2006 (the "Exchange Notes"). The terms and conditions of the Exchange Offer
as currently contemplated are set forth in the prospectus (the "Prospectus")
included in the Company's Registration Statement on Form S-4 ("Registration
Statement") filed with the Securities and Exchange Commission (Registration
No. 333-73810) and the related Letter of Transmittal (the "Letter of
Transmittal", which together with the Prospectus constitute the "Exchange
Offer").
You are hereby appointed and authorized to act as agent (the
"Exchange Agent") to effect the Exchange Offer, on the terms and subject to the
conditions of this agreement (the "Agreement"). In that connection, the
following documents have been delivered to you and a copy of each of the
following documents is attached hereto as EXHIBIT A:
(i) the Prospectus;
(ii) the form of Letter of Transmittal to be used by
holders of Senior Notes pursuant to the Exchange
Offer;
(iii) the form of Notice of Guaranteed Delivery to be used
by holders of Senior Notes in tendering their Senior
Notes when they are not immediately available or time
will not permit a holder's Senior Notes or other
required documents to reach you prior to the
expiration of the Exchange Offer;
(iv) Form of Letter to Clients;
(v) Form of Letter to Depository Trust Participants;
(vi) Instruction to Registered Holder from Beneficial
Owner; and
(vii) Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9
(collectively, the "Tender Documents").
The Exchange Offer shall expire at the time and on the date
specified in the Prospectus (the "Initial Expiration Date") or at any subsequent
time and date to which the Company may extend the offer. The later of the
Initial Expiration Date and the latest time and date to which the Exchange Offer
is so extended is referred to as the "Expiration Date".
You are hereby requested, and you hereby agree, to act as
follows:
1. You will perform such duties and only such duties as
are specifically set forth in the section of the Prospectus captioned "The
Exchange Offer" or as specifically set forth in this Agreement.
2. You are to mail, at the cost and expense of the
Company, such number of copies of the Prospectus and the Tender Documents to all
of the registered Holders and to such participants as you have been notified in
writing on the day that you are notified by the Company that the Registration
Statement has become effective under the Securities Act of 1933, as amended, or
as soon as practicable thereafter, and to make subsequent mailings thereof to
such other persons who to your knowledge become Holders prior to the Expiration
Date and to any persons as may from time to time be requested by the Company.
The Company shall provide, at its sole cost and expense, sufficient copies of
the Prospectus and Tender Documents as may be required under this Agreement. All
mailings pursuant to this Section 2 shall be by first-class mail, postage
prepaid, unless otherwise specified by the Company. You shall also accept and
comply with telephone requests for information relating to the Exchange Offer,
provided that such information shall relate only to the procedures for tendering
Private Notes in (or withdrawing tenders of Private Notes from) the Exchange
Offer. All other requests for information relating to the Exchange Offer shall
be directed to the Company, Attention: Xxxxxx X. Xxxxxxxxx, ALARIS Medical
Systems, Inc., 00000 Xxxxxxxxx Xxxxxx, Xxx Xxxxx, XX 00000; Telephone (858)
000-0000; Facsimile (000) 000-0000.
3. You are to accept Senior Notes which are accompanied
by a Letter of Transmittal or facsimile thereof, properly completed and duly
executed in accordance with the instructions thereon and any requisite
collateral documents and all other instruments and communications submitted to
you in connection with the Exchange Offer and to hold the same upon the terms
and conditions set forth in this Agreement.
4. You are to examine the Letters of Transmittal, Senior
Notes and other documents delivered to you by or for holders of Senior Notes
prior to the expiration date, to ascertain whether (i) the Letters of
Transmittal are properly completed and duly executed in accordance with the
instructions set forth therein, (ii) the other documents required by the Letter
of Transmittal are properly completed and duly executed, and (iii) the Senior
Notes have otherwise been properly tendered. You need not pass on the legal
sufficiency of any signature or verify any signature guarantee.
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5. In the event any Letter of Transmittal or other
document has been improperly executed or completed or any of the certificates
are not in proper form or have been improperly tendered or any book-entry
delivery of Senior Notes improperly made, or if some other irregularity in
connection with the delivery of Senior Notes by a holder thereof exists, you are
authorized to endeavor to take such action as you may deem to be appropriate to
cause such irregularity to be corrected. You are authorized, upon consultation
with the Company or one of its representatives, to request from any person
tendering Senior Notes such additional documents or undertakings as you may deem
appropriate. All questions as to the form of all documents and the validity,
eligibility (including time of receipt) and acceptance of tendered Senior Notes
will be determined by the Company, in its sole discretion, whose determination
will be final and binding. The Company reserves the absolute right to reject any
or all tenders of any particular Senior Notes which would, in the opinion of the
Company's counsel, be unlawful. The Company also reserves the absolute right to
waive any of the conditions of the Exchange Offer or any defect or irregularity
in the tender of any Senior Notes, and the Company's interpretation of the terms
and conditions of the Exchange Offer (including the Letters of Transmittal and
the instructions set forth therein) will be final. No tender of Senior Notes
will be deemed to have been properly made until all defects and irregularities
have been cured or waived to the satisfaction of the Company.
6. Tenders of Senior Notes may be made only as set forth
in the Prospectus, and securities shall be considered properly tendered to you
only when a properly completed and duly executed Letter of Transmittal, with any
required signature guarantees and any other required documents, are received by
you at your address set forth in the Prospectus on or prior to the Expiration
Date and either (i) certificates representing such Senior Notes are received by
you at such address or (ii) such Senior Notes are transferred pursuant to the
procedures for book-entry transfer described in the Prospectus.
7. If a holder desires to tender Senior Notes pursuant
to the Exchange Offer and such holder's certificates evidencing the Senior Notes
are not immediately available or the procedure for book-entry transfer cannot be
completed on a timely basis or time will not permit all required documents to
reach you prior to the Expiration Date, such holder's tender may be effected if
all the following conditions are satisfied: (i) the tender is made by or through
an Eligible Institution (as defined in the Prospectus); (ii) a properly
completed and duly executed Notice of Guaranteed Delivery, substantially in the
form provided by the Company, is received by you, as provided below, prior to
the Expiration Date; and (iii) the certificates for all tendered Senior Notes,
in proper form for transfer (or a confirmation of a book-entry transfer of such
Senior Notes into your account at the Depository Trust Company ("DTC")),
together with a properly completed and duly executed Letter of Transmittal (or
facsimile thereof), together with any required signature guarantees and any
other documents required by the Letter of Transmittal are received by you within
three (3) business days after the date of delivery of such Notice of Guaranteed
Delivery.
The Notice of Guaranteed Delivery may be delivered by hand,
facsimile transmission or mail, to you and must include a guarantee by an
Eligible Institution in the form set forth in the Notice of Guaranteed Delivery.
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If you determine it to be necessary or advisable, you may
communicate with Eligible Institutions that have tendered Senior Notes by means
of the aforementioned procedures to ascertain information in connection
therewith.
8. Holders of Senior Notes may make book-entry delivery
of their securities. You will establish an account or accounts with respect to
the Senior Notes at DTC for purpose of the Exchange Offer to permit book-entry
transfers of Senior Notes. Except as otherwise provided below, Senior Notes, or
any book-entry transfer into your account(s) at DTC of Senior Notes tendered
electronically, as well as a properly completed and duly executed copy of the
Letter of Transmittal, and any other documents required by the Letter of
Transmittal, must be received by you or, in the case of tenders of book-entry
transfer, confirmed to you on or prior to the Expiration Date.
9. A tendering holder of Senior Notes may withdraw
tendered Senior Notes in accordance with the procedures set forth in the
Prospectus and prior to the Expiration Date, in which event, except as may be
otherwise specified in such holder's notice of withdrawal, all items in your
possession which shall have been received from such holder with respect to those
Senior Notes shall be promptly returned to or upon the order of such holder and
the Senior Notes covered by those items shall no longer be considered to be
properly tendered. A withdrawal may not be rescinded. Withdrawn Senior Notes
may, however, be retendered at any time on or prior to the Expiration Date.
10. You are to record and to hold all tenders received by
you and to promptly notify by telephone after the close of business on each
business day, the following person as to the total number of Senior Notes
tendered on such day and the cumulative number of Senior Notes received through
the time of such call: Xxxxxx X. Xxxxxxxxx. Each daily report should be divided
into the number of Senior Notes represented by (i) certificates and (ii) Notices
of Guaranteed Delivery actually received by you through the time of the report.
The foregoing information should also be sent in a daily written report with
copies to such persons as are designated by the Company. In addition, you will
also provide, and cooperate in making available to the Company, such other
information as it may reasonably request upon oral request made from time to
time. Your cooperation shall include, without limitation, the granting by you to
the Company, and such other persons as it may reasonably request, of access to
those persons on your staff who are responsible for receiving tenders of Senior
Notes, in order to insure that immediately prior to the Expiration Date, the
Company shall have received information in sufficient detail to enable it to
decide whether to extend the offer.
11. Letters of Transmittal, Notices of Guaranteed
Delivery and facsimile transmissions and letters submitted in lieu thereof
pursuant to the Exchange Offer shall be stamped by you as to the date and time
of receipt and shall be retained in your possession until the Expiration Date.
As promptly as practicable thereafter, you will deliver those items, together
with all properly tendered Senior Notes to _________________________.
12. You are to satisfy requests of brokers, dealers,
commercial banks, trust companies and other persons for copies of the
documents and other materials specified in items (i) through (iii) of the
introduction to this Agreement. You are not authorized to offer or to pay any
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concessions or commissions to any brokers, banks or other persons or to engage
or to utilize any persons to solicit tenders.
13. You are to follow up and to act upon any amendments,
modifications or supplements to these instructions, and upon any further
information in connection with the terms of the Exchange Offer, any of which may
be given to you by the Company, including instructions with respect to (i) any
extension or other modification of the Exchange Offer, (ii) the manner of
exchange, and (iii) the cancellation of the Exchange Offer.
14. Unless otherwise indicated under any Special Delivery
Instructions set forth in any Letter of Transmittal, you shall, in accordance
with Paragraph 20 below, mail the Exchange Notes and certificates for any Senior
Notes submitted but not tendered for exchange to the registered owner of the
securities at the address shown in the Letter of Transmittal.
15. No exchange shall be made as to any Senior Notes
until you physically receive a certificate or certificates (or a timely
confirmation of a book-entry transfer) representing those Senior Notes, a
properly completed and duly executed Letter of Transmittal, with any required
signature guarantees, or, in the case of a book-entry transfer, an "agent's
message" (as defined in the Prospectus), and any other documents required by the
Letter of Transmittal. You shall have no duty to enforce any guarantees given
pursuant to this Paragraph 15.
16. For performing your services hereunder, you shall be
entitled to receive from the Company a fee in accordance with Exhibit A attached
hereto. You shall also be reimbursed by the Company for all reasonable expenses,
including reasonable counsel fees, if any, you may incur in connection with the
performance of your duties after submission to the Company of itemized
statements.
17. As Exchange Agent hereunder you:
(a) shall not have duties or obligations other
than those specifically set forth herein or
in the Tender Documents or as may
subsequently be agreed to by you and the
Company;
(b) shall not be obligated to take any legal
action hereunder which might in your
judgment involve any expense or liability
unless you have been furnished with
reasonable indemnification;
(c) may rely on and shall be protected in acting
upon any certificate, instrument, opinion,
notice, letter or other document or security
delivered to you and believed by you to be
genuine and to have been signed by the
proper party or parties;
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(d) may rely on and shall be protected in acting
upon the written instructions of the
following officer of the Company: Xxxxxx X.
Xxxxxxxxx; and
(e) may consult counsel satisfactory to you
(including counsel to the Company or
attorneys in your employ), and the opinion
of such counsel shall be full and complete
authorization and protection with respect to
any action taken, suffered, or omitted by
you hereunder in good faith and in
accordance with the opinion of such counsel.
18. You undertake the duties and obligations imposed
herein upon the following additional terms and conditions:
(a) you shall perform your duties and
obligations hereunder with due care.
(b) you will be regarded as making no
representation and having no
responsibilities as to the validity,
sufficiency, value or genuineness of any
certificates or the Senior Notes evidenced
thereby deposited with you hereunder or of
any Letter of Transmittal, book-entry
transfer of securities or Notice of
Guaranteed Delivery, and will not be
required to and will make no representation
as to the validity, value or genuineness of
the Exchange Offer.
19. You are not authorized to make any recommendation on
behalf of the Company as to whether a holder of Senior Notes should or should
not tender his or her Senior Notes.
20. All certificates for Exchange Notes and shall be
forwarded (i) first-class mail under a blanket surety bond protecting you and
the Company from loss or liability arising out of the non-receipt or
non-delivery of such certificates or (ii) registered mail, insured separately
for the replacement value of such certificates.
21. You are authorized to cooperate with and furnish
information to any organization designated from time to time by the Company, in
any manner reasonably requested by any of them in connection with the Exchange
Offer and tenders thereunder.
22. The Company covenants and agrees to reimburse,
indemnify and hold you and each of your officers, directors, agents, employees,
attorneys and agents (collectively, the "Indemnitees") harmless against any
costs, expenses (including reasonable expenses of your legal counsel), losses or
damages which, without gross negligence, willful misconduct or bad faith on your
part or arising out of or attributable thereto, may be paid, incurred or
suffered by an Indemnitee or to which an Indemnitee may become subject by reason
of or as a result of the administration of your duties hereunder or by reason of
or as a result of your compliance with the instructions set forth herein or with
any written or oral instructions delivered to you pursuant hereto, or liability
resulting
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from your actions as Exchange Agent pursuant hereto, including any claims
against an Indemnitee by any holder tendering Senior Notes for exchange. The
Company shall be entitled to participate at its own expense in the defense, and
if the Company so elects at any time after receipt of such notice, the Company
shall assume the defense of any suit brought to enforce any such claim. In the
event that the Company assumes the defense of any such suit, the Company shall
not be liable for the fees and expenses of any additional counsel thereafter
retained by any Indemnitee, unless there is a conflict of interest between you
and the Company which, in your reasonable judgment, you have concluded that
there may be defenses available to you that are different from or additional to
those available to the Company. You agree to notify the Company, by letter, of
the written assertion of a claim against an Indemnitee or of any action
commenced against an Indemnitee, promptly after you shall have received any such
written assertion of a claim or shall have been served with a summons or other
first legal process giving information as to the nature and basis of an action.
Notwithstanding the foregoing, the failure so to notify the Company shall not
relieve the Company from any indemnity or other obligations which it may have
under this Agreement except for liability that is a direct result of the failure
of an Indemnitee so to notify the Company. No Indemnitee shall settle any loss
without prior consent of the Company, which shall not be unreasonably withheld
or delayed if not adverse to the Company's interests.
You shall be under no obligation to institute or defend any
action, suit or legal proceeding in connection herewith or to take any other
similar action likely to involve you in expenses, unless first indemnified by
the Company to your reasonable satisfaction.
23. You hereby acknowledge receipt of the Prospectus and
each of the documents listed in items (i) through (iii) of the introduction to
this Agreement and further acknowledge that you have examined the same. Any
inconsistency between this Agreement on the one hand and the Prospectus and
related Letter of Transmittal, as they may from time to time be amended, on the
other, shall be resolved in favor of the latter, except with respect to the
duties, liabilities and indemnification of you as Exchange Agent.
Notwithstanding the foregoing, the Company acknowledges that you shall not be
responsible for and make no representation as to the validity or adequacy of the
Prospectus and related Letter of Transmittal, nor shall you be responsible for
any statement of the Company in any document issued in connection with the sale
of the Senior Notes.
24. All notices, statements and other communications
hereunder shall be in writing, signed by a duly authorized officer of the party
sending such notices, and shall be deemed given when delivered by hand or by
certified mail, postage prepaid, addressed as follows:
To the Company:
ALARIS Medical Systems, Inc.
00000 Xxxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
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with copy to:
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxx Xxxxx, Esq.
To you:
HSBC Bank USA
000 0xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Issuer Services
with copy to:
Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
or to such other address as either party may furnish hereunder by notice:
provided that notice of change of address shall be deemed given only when
received.
25. This agreement shall be construed and enforced in
accordance with the law of the State of New York applicable to agreements made
and to be performed in New York and shall inure to the benefit of, and the
obligations created hereby shall be binding upon, the successors and assigns of
the parties hereto.
26. Instructions by the Company to you pursuant to this
Agreement may be reasonably modified or supplemented by the Company or by any
officer authorized to give notice, approval or waiver on its behalf upon written
agreement by you to such modification or supplement.
27. This Agreement may be executed in one or more
counterparts which in the aggregate shall be one Agreement.
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Please acknowledge receipt of this letter and confirm the
arrangements herein provided by signing and returning the enclosed copy.
Very truly yours,
ALARIS MEDICAL SYSTEMS, INC.
By:
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Name:
Title:
ACCEPTED AS OF
, 2001
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HSBC BANK USA
As Exchange Agent
By:
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Title:
Name:
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