Common use of Deposit of Merger Consideration Clause in Contracts

Deposit of Merger Consideration. At or promptly following the Effective Time, Xxxxxxx shall deposit, or shall cause to be deposited, with Computershare, Xxxxxxx’ transfer agent (the “Exchange Agent”), for the benefit of the holders of record of shares of Southwest Common Stock issued and outstanding immediately prior to the Effective Time (the “Holders”), for exchange in accordance with this ARTICLE 3, (i) certificates or evidence of Xxxxxxx Common Stock in book-entry form issuable pursuant to Section 2.1(c) (collectively referred to as “Xxxxxxx Certificates”) for shares of Xxxxxxx Common Stock equal to the aggregate Stock Consideration and (ii) immediately available funds equal to the aggregate Cash Consideration (together with, to the extent then determinable, any cash payable in lieu of fractional shares pursuant to Section 2.6 (collectively, the “Exchange Fund”) and Xxxxxxx shall instruct the Exchange Agent to timely pay the Merger Consideration and cash in lieu of fractional shares, in accordance with this Agreement. The cash portion of the Exchange Fund shall be invested by the Exchange Agent as directed by Xxxxxxx or the Surviving Corporation. Interest and other income on the Exchange Fund shall be the sole and exclusive property of Xxxxxxx and the Surviving Corporation and shall be paid to Xxxxxxx or the Surviving Corporation, as Xxxxxxx directs. No investment of the Exchange Fund shall relieve Xxxxxxx, the Surviving Corporation or the Exchange Agent from making the payments required by this ARTICLE 3 and following any losses from any such investment, Xxxxxxx shall promptly provide additional funds to the Exchange Agent to the extent necessary to satisfy Xxxxxxx’ obligations hereunder for the benefit of the Holders, which additional funds will be deemed to be part of the Exchange Fund.

Deposit of Merger Consideration. At or promptly following Promptly after the Effective Time, Xxxxxxx the Parent Operating Partnership shall deposit, or shall cause to be deposited, with Computersharethe person authorized to act as exchange agent under this Agreement, Xxxxxxx’ transfer agent which person shall be a bank or trust company selected by Parent and reasonably acceptable to the Company (the “Exchange Agent”), for the benefit of the holders of record of shares of Southwest Company Common Stock issued and outstanding immediately prior to Stock, at the Effective Time (the “Holders”)Time, for exchange in accordance with this ARTICLE 3Article III, (i) certificates or evidence of Xxxxxxx Parent Common Stock and Series F Preferred Stock in book-entry form issuable pursuant to Section 2.1(c3.1(a) (collectively referred to as “Xxxxxxx Certificates”) for shares of Xxxxxxx Common Stock equal to the aggregate Stock Consideration Consideration, and (ii) immediately available funds equal to the aggregate Cash Consideration (together with, to the extent then determinable, any cash payable in lieu of fractional shares pursuant to Section 2.6 ‎Section 3.12) (collectively, the “Exchange Fund”) and Xxxxxxx the Parent Operating Partnership shall instruct the Exchange Agent to timely pay the Merger Cash Consideration and cash in lieu of fractional shares, in accordance with this Agreement. The cash portion of the Exchange Fund shall be invested by the Exchange Agent as directed by Xxxxxxx the Parent Operating Partnership or the Surviving CorporationEntity. Interest and other income on the Exchange Fund shall be the sole and exclusive property of Xxxxxxx the Parent Operating Partnership and the Surviving Corporation Entity and shall be paid to Xxxxxxx the Parent Operating Partnership or the Surviving CorporationEntity, as Xxxxxxx the Parent Operating Partnership directs. No investment of the Exchange Fund shall relieve Xxxxxxxthe Parent Operating Partnership, the Surviving Corporation Entity or the Exchange Agent from making the payments required by this ARTICLE 3 ‎Article III, and following any losses from any such investment, Xxxxxxx the Parent Operating Partnership shall promptly provide additional funds to the Exchange Agent to the extent necessary to satisfy Xxxxxxx’ the Parent Operating Partnership’s obligations hereunder for the benefit of the Holdersholders of shares of Company Common Stock at the Effective Time, which additional funds will be deemed to be part of the Exchange Fund.

Deposit of Merger Consideration. At or promptly following the Effective Time, Xxxxxxx shall deposit, or shall cause to be deposited, with Computershare, Xxxxxxx’ transfer agent, or another exchange agent reasonably acceptable to Xxxxxxx (the “Exchange Agent”), for the benefit of the holders of record of shares of Southwest First Texas Common Stock issued and outstanding immediately prior to the Effective Time (the “Holders”), for exchange in accordance with this ARTICLE 3, (i) certificates or evidence of Xxxxxxx Common Stock in book-entry form issuable pursuant to Section 2.1(c) (collectively referred to as “Xxxxxxx Certificates”) for shares of Xxxxxxx Common Stock equal to the aggregate Stock Consideration and (ii) immediately available funds equal to the aggregate Aggregate Cash Consideration (together with, to the extent then determinable, any cash payable in lieu of fractional shares pursuant to Section 2.6 2.5 (collectively, the “Exchange Fund”) and Xxxxxxx shall instruct the Exchange Agent to timely pay the Merger Aggregate Cash Consideration, the Stock Consideration and cash in lieu of fractional shares, in accordance with this Agreement. The cash portion of the Exchange Fund shall be invested by the Exchange Agent as directed by Xxxxxxx or the Surviving Corporation. Interest and other income on the Exchange Fund shall be the sole and exclusive property of Xxxxxxx and the Surviving Corporation and shall be paid to Xxxxxxx or the Surviving Corporation, as Xxxxxxx directs. No investment of the Exchange Fund shall relieve Xxxxxxx, the Surviving Corporation or the Exchange Agent from making the payments required by this ARTICLE 3 and following any losses from any such investment, Xxxxxxx shall promptly provide additional funds to the Exchange Agent to the extent necessary to satisfy Xxxxxxx’ obligations hereunder for the benefit of the Holders, which additional funds will be deemed to be part of the Exchange Fund.

Deposit of Merger Consideration. At or promptly following prior to the Merger Effective Time, Xxxxxxx (i) Parent shall deposit, or shall cause to be deposited, with Computershare, Xxxxxxx’ transfer agent (the “Exchange Agent”), for a number of Convertible Notes sufficient to deliver, and Parent shall instruct the benefit of the holders of record of shares of Southwest Common Stock issued and outstanding immediately prior Exchange Agent to the Effective Time (the “Holders”)timely deliver, for exchange in accordance with this ARTICLE 3, (i) certificates or evidence of Xxxxxxx Common Stock in book-entry form issuable pursuant to Section 2.1(c) (collectively referred to as “Xxxxxxx Certificates”) for shares of Xxxxxxx Common Stock equal to the aggregate Stock Consideration and Convertible Notes Consideration, (ii) Company shall deposit, or shall cause to be deposited, with the Exchange Agent immediately available funds equal to the aggregate amount of Cash Consideration (together with, required to the extent then determinable, any cash payable be paid in lieu of fractional shares pursuant to Section 2.6 connection with actual or deemed Cash Elections (collectively, the “Exchange Fund”) and Xxxxxxx with the Trustee under the Trust Agreement immediately available funds equal to the initial principal amount of Convertible Notes required to be issued in connection with actual or deemed Convertible Notes Elections and (iii) Parent shall instruct the Exchange Agent to timely pay such aggregate First Payment Consideration owing to Holders electing the Merger Consideration Cash Consideration. Company also shall deposit $1,500,000 plus the amount by which the aggregate cash liquidation proceeds of the Company’s marketable securities and cash in lieu restricted investments held as of fractional sharesJune 30, 2009 that are available as of the Closing Date exceed $28,021,000 with the Escrow Agent and Parent shall instruct the Escrow Agent to timely pay such amounts (as well as any Additional Assets) in accordance with this AgreementSection 1.15 hereof. The Parent shall use its commercially reasonable efforts to maximize the amount of Additional Assets, shall deposit all Additional Assets with the Escrow Agent as promptly as practicable following receipt in cash portion and shall provide timely notice to Avigen Representative of the Exchange Fund shall be invested by the Exchange Agent as directed by Xxxxxxx or the Surviving Corporation. Interest and other income on the Exchange Fund shall be the sole and exclusive property deposit of Xxxxxxx and the Surviving Corporation and shall be paid to Xxxxxxx or the Surviving Corporation, as Xxxxxxx directs. No investment of the Exchange Fund shall relieve Xxxxxxx, the Surviving Corporation or the Exchange Agent from making the payments required by this ARTICLE 3 and following any losses from any such investment, Xxxxxxx shall promptly provide additional funds to the Exchange Agent to the extent necessary to satisfy Xxxxxxx’ obligations hereunder for the benefit of the Holders, which additional funds will be deemed to be part of the Exchange FundAdditional Assets.

Deposit of Merger Consideration. At or promptly following the Effective Time, Xxxxxxx shall deposit, or shall cause to be deposited, with Computershare, Xxxxxxx’ transfer agent, or another exchange agent reasonably acceptable to Xxxxxxx (provided that Xxxxxxx shall consult with Xxxxxxx regarding the selection of such other exchange agent) (the “Exchange Agent”), for the benefit of the holders of record of shares of Southwest Class A Common Stock or Class B Common Stock (excluding the Canceled Shares) issued and outstanding immediately prior to the Effective Time (collectively, the “Holders”)) and the holders of record of shares of Series E Preferred Stock issued and outstanding immediately prior to the Effective Time, for exchange in accordance with this ARTICLE 3, (i) certificates or evidence of Xxxxxxx Common Stock in book-entry form issuable pursuant to Section 2.1(c) (collectively referred to as “Xxxxxxx Certificates”) for shares of Xxxxxxx Common Stock equal to the aggregate Aggregate Stock Consideration and Consideration, (ii) immediately available funds equal to for (A) the aggregate Cash Consideration (together with, Fractional Share Payments to the extent then determinabledeterminable and (B), after the Effective Time, if applicable, any cash payable in lieu of fractional shares dividends or distributions which such Holders have the right to receive pursuant to Section 2.6 3.1(d) (collectively, the “Exchange Fund”), and (iii) and certificates or evidence of Xxxxxxx Series D Preferred Stock in book-entry form issuable pursuant to Section 2.5. Xxxxxxx shall instruct the Exchange Agent to timely pay the Merger Consideration and cash in lieu of fractional shares, the Xxxxxxx Series D Preferred Stock in accordance with this Agreement. The cash portion of the Exchange Fund shall be invested by the Exchange Agent as directed by Xxxxxxx or the Surviving Corporation. Interest and other income on the Exchange Fund shall be the sole and exclusive property of Xxxxxxx and the Surviving Corporation and shall be paid to Xxxxxxx or the Surviving Corporation, as Xxxxxxx directs. No investment of the Exchange Fund shall relieve Xxxxxxx, the Surviving Corporation or the Exchange Agent from making the payments required by this ARTICLE 3 Agreement and following any losses from any such investment, Xxxxxxx shall promptly provide additional funds to the Exchange Agent to the extent necessary to satisfy Xxxxxxx’ obligations hereunder for the benefit of the Holders, which additional funds will be deemed to be part of the Exchange Fund.

Deposit of Merger Consideration. At or promptly following the Effective Time, Xxxxxxx Buyer shall deposit, or shall cause to be deposited, with Computershare, Xxxxxxx’ Buyer’s transfer agent or another exchange agent reasonably acceptable to Target (the “Exchange Agent”), for the benefit of the holders of record of shares of Southwest Target Common Stock issued and outstanding immediately prior to the Effective Time (the “Holders”), for exchange in accordance with this ARTICLE 3, (i) certificates or evidence of Xxxxxxx Buyer Common Stock in book-entry form issuable pursuant to Section 2.1(c) (collectively referred to as “Xxxxxxx Buyer Certificates”) for shares of Xxxxxxx Buyer Common Stock equal to the aggregate Stock Consideration and (ii) immediately available funds equal to the aggregate Cash Consideration (together with, to the extent then determinable, any cash payable in lieu of fractional shares pursuant to Section 2.6 2.5 (collectively, the “Exchange Fund”) and Xxxxxxx Buyer shall instruct the Exchange Agent to timely pay the Merger Consideration and cash in lieu of fractional shares, in accordance with this Agreement. The cash portion of the Exchange Fund shall be invested by the Exchange Agent as directed by Xxxxxxx Buyer or the Surviving Corporation. Interest and other income on the Exchange Fund shall be the sole and exclusive property of Xxxxxxx Buyer and the Surviving Corporation and shall be paid to Xxxxxxx Buyer or the Surviving Corporation, as Xxxxxxx Buyer directs. No investment of the Exchange Fund shall relieve XxxxxxxBuyer, the Surviving Corporation or the Exchange Agent from making the payments required by this ARTICLE 3 and following any losses from any such investment, Xxxxxxx Buyer shall promptly provide additional funds to the Exchange Agent to the extent necessary to satisfy Xxxxxxx’ Buyer’s obligations hereunder for the benefit of the Holders, which additional funds will be deemed to be part of the Exchange Fund.

Deposit of Merger Consideration. At or promptly following the Effective Time, Xxxxxxx shall deposit, or shall cause to be deposited, with Computershare, Xxxxxxx’ transfer agent (the “Exchange Agent”), for the benefit of the holders of record of shares of Southwest Common Stock issued and outstanding immediately prior to the Effective Time (the “Holders”), for exchange in accordance with this ARTICLE 3, (i) certificates or evidence of Xxxxxxx Common Stock in book-entry form issuable pursuant to Section 2.1(c) (collectively referred to as “Xxxxxxx Certificates”) for shares of Xxxxxxx Common Stock equal to the aggregate Stock Consideration and (ii) immediately available funds equal to the aggregate Cash Consideration (together with, to the extent then determinable, any cash payable in lieu of fractional shares pursuant to Section 2.6 (collectively, the “Exchange Fund”) and Xxxxxxx shall instruct the Exchange Agent to timely pay the Merger Consideration and cash in lieu of fractional shares, in accordance with this Agreement. The cash portion of the Exchange Fund shall be invested by the 7 Exchange Agent as directed by Xxxxxxx or the Surviving Corporation. Interest and other income on the Exchange Fund shall be the sole and exclusive property of Xxxxxxx and the Surviving Corporation and shall be paid to Xxxxxxx or the Surviving Corporation, as Xxxxxxx directs. No investment of the Exchange Fund shall relieve Xxxxxxx, the Surviving Corporation or the Exchange Agent from making the payments required by this ARTICLE 3 and following any losses from any such investment, Xxxxxxx shall promptly provide additional funds to the Exchange Agent to the extent necessary to satisfy Xxxxxxx’ obligations hereunder for the benefit of the Holders, which additional funds will be deemed to be part of the Exchange Fund.

Deposit of Merger Consideration. At or promptly following Promptly after the Effective Time, Xxxxxxx Parent shall deposit, or shall cause to be deposited, with Computershare, Xxxxxxx’ transfer agent (the “Exchange Agent”), Agent for the benefit of the holders of record of shares of Southwest Company Common Stock issued and outstanding immediately prior to Stock, at the Effective Time (the “Holders”)Time, for exchange in accordance with this ARTICLE 3‎‎Article III, (i) certificates or evidence of Xxxxxxx Parent Common Stock in book-entry form issuable pursuant to Section 2.1(c‎‎Section 3.1(a) (collectively referred to as “Xxxxxxx Certificates”) for shares of Xxxxxxx Common Stock equal to the aggregate Stock Consideration or stock portion of the Alternative Stock Consideration, as may be applicable, and (ii) immediately available funds equal to the aggregate Cash Consideration and the cash portion of the Alternative Stock Consideration, if any (together with, to the extent then determinable, any cash payable in lieu of fractional shares pursuant to Section 2.6 ‎‎Section 3.14) (collectively, the “Exchange Fund”) and Xxxxxxx Parent shall instruct the Exchange Agent to timely pay the Merger Cash Consideration and the cash portion of the Alternative Stock Consideration, if any, and cash in lieu of fractional shares, in accordance with this Agreement. The cash portion of the Exchange Fund shall be invested by the Exchange Agent as directed by Xxxxxxx Parent or the Surviving CorporationEntity. Interest and other income on the Exchange Fund shall be the sole and exclusive property of Xxxxxxx Parent and the Surviving Corporation Entity and shall be paid to Xxxxxxx Parent or the Surviving CorporationEntity, as Xxxxxxx Parent directs. No investment of the Exchange Fund shall relieve XxxxxxxParent, the Surviving Corporation Entity or the Exchange Agent from making the payments required by this ARTICLE 3 ‎Article III, and following any losses from any such investment, Xxxxxxx Parent shall promptly provide additional funds to the Exchange Agent to the extent necessary to satisfy Xxxxxxx’ Parent’s obligations hereunder for the benefit of the Holdersholders of shares of Company Common Stock at the Effective Time, which additional funds will be deemed to be part of the Exchange Fund.

Deposit of Merger Consideration. At or promptly following prior to the Effective Time, Xxxxxxx BCB shall deposit, or shall cause to be deposited, with Computershare, Xxxxxxx’ transfer an exchange agent reasonably acceptable to BCB (the “"Exchange Agent”"), for the benefit of the holders of record of shares of Southwest Common Stock issued and outstanding immediately prior to the Effective Time (the “Holders”), for exchange in accordance with this ARTICLE Article 3, : (i) certificates or evidence of Xxxxxxx Common Stock in book-entry form issuable pursuant to Section 2.1(c) (collectively referred to as “Xxxxxxx Certificates”) BCB Certificates for shares of Xxxxxxx BCB Common Stock equal to the aggregate Stock Consideration and Consideration; and, (ii) immediately available funds equal to the aggregate Cash Consideration (together with, to the extent then determinable, any cash payable in lieu of fractional shares pursuant to Section 2.6 2.6) (collectively, the “"Exchange Fund”) "), and Xxxxxxx BCB shall instruct the Exchange Agent to timely pay the Merger Consideration and cash in lieu of fractional shares, in accordance with this Agreement. The cash portion of the Exchange Fund shall be invested by the Exchange Agent as directed by Xxxxxxx BCB or the Surviving Corporation. Interest and other income on the Exchange Fund shall be the sole and exclusive property of Xxxxxxx BCB and the Surviving Corporation and shall be paid to Xxxxxxx BCB or the Surviving Corporation, as Xxxxxxx BCB directs. No investment of the Exchange Fund shall relieve XxxxxxxBCB, the Surviving Corporation or the Exchange Agent from making the payments required by this ARTICLE Article 3 and and, following any losses from any such investment, Xxxxxxx BCB shall promptly provide additional funds to the Exchange Agent to the extent necessary to satisfy Xxxxxxx’ BCB's obligations hereunder for the benefit of the Holders, which additional funds will be deemed to be part of the Exchange Fund.

Deposit of Merger Consideration. At or promptly following the Effective Time, Xxxxxxx shall deposit, or shall cause to be deposited, with Computershare, Xxxxxxx’ transfer agent, or another exchange agent reasonably acceptable to Xxxxxxx (the “Exchange Agent”), for the benefit of the holders of record of shares of Southwest Reliance Common Stock (excluding Canceled Shares) issued and outstanding immediately prior to the Effective Time (the “Holders”), for exchange in accordance with this ARTICLE 3, (i) certificates or evidence of Xxxxxxx Common Stock in book-entry form issuable pursuant to Section 2.1(c) (collectively referred to as “Xxxxxxx Certificates”) for shares of Xxxxxxx Common Stock equal to the aggregate Stock Consideration and Consideration, (ii) immediately available funds equal to for (A) the aggregate Aggregate Cash Consideration and (together with, to the extent then determinable, B) any cash payable in lieu of fractional shares pursuant to Section 2.6 to the extent then determinable (collectively, the “Exchange Fund”), (iii) certificates or evidence of Xxxxxxx Series A Preferred Stock in book-entry form issuable pursuant to Section 2.7, (iv) certificates or evidence of Xxxxxxx Series B Preferred Stock in book-entry form issuable pursuant to Section 2.8 and (v) certificates or evidence of Xxxxxxx Series C Preferred Stock in book-entry form issuable pursuant to Section 2.9, and Xxxxxxx shall instruct the Exchange Agent to timely pay the Merger Consideration and Aggregate Cash Consideration, Stock Consideration, cash in lieu of fractional shares, the Xxxxxxx Series A Preferred Stock, the Xxxxxxx Series B Preferred Stock and the Xxxxxxx Series C Preferred Stock in accordance with this Agreement. The cash portion of the Exchange Fund shall be invested by the Exchange Agent as directed by Xxxxxxx or the Surviving Corporation. Interest and other income on the Exchange Fund shall be the sole and exclusive property of Xxxxxxx and the Surviving Corporation and shall be paid to Xxxxxxx or the Surviving Corporation, as Xxxxxxx directs. No investment of the Exchange Fund shall relieve Xxxxxxx, the Surviving Corporation or the Exchange Agent from making the payments required by this ARTICLE 3 and following any losses from any such investment, Xxxxxxx shall promptly provide additional funds to the Exchange Agent to the extent necessary to satisfy Xxxxxxx’ obligations hereunder for the benefit of the Holders, which additional funds will be deemed to be part of the Exchange Fund.

Deposit of Merger Consideration. At or promptly following prior to the Effective Time, Xxxxxxx Parent shall select and appoint a Person reasonably acceptable to the Company to act as exchange agent in connection with the transactions contemplated by this Agreement (the “Exchange Agent”) and shall enter into an agreement with the Exchange Agent reasonably acceptable to Parent and the Company (the “Exchange Agent Agreement”). At or prior to the Effective Time, Parent shall deposit, or shall cause to be deposited, with Computershare, Xxxxxxx’ transfer agent (the “Exchange Agent”), for the benefit of the holders of record of shares of Southwest Parent Class A Common Stock issued and outstanding immediately prior sufficient to deliver the Effective Time (the “Holders”), for exchange aggregate Merger Consideration in accordance with this ARTICLE 3, (i) certificates or evidence of Xxxxxxx Common Stock in book-entry form issuable pursuant to Section 2.1(c) (collectively referred to as “Xxxxxxx Certificates”) for shares of Xxxxxxx Common Stock equal to the aggregate Stock Consideration and (ii) immediately available funds equal to the aggregate Cash Consideration Agreement (together with, to the extent then determinable, any cash payable in lieu of fractional shares of Parent Class A Common Stock pursuant to Section 2.6 (collectively2.3(f), the “Exchange Fund”) ), and Xxxxxxx Parent shall instruct the Exchange Agent to timely pay the Merger Consideration Consideration, and such cash in lieu of fractional sharesshares of Parent Class A Common Stock, in accordance with this Agreement. The cash portion of in the Exchange Fund shall be invested by the Exchange Agent as directed by Xxxxxxx or the Surviving Corporation. Interest and other income on the Exchange Fund Parent; provided, that (i) such investments shall be the sole in obligations, funds or accounts typical for (including having liquidity typical for) transactions of this nature and exclusive property of Xxxxxxx and the Surviving Corporation and shall be paid to Xxxxxxx or the Surviving Corporation, as Xxxxxxx directs. No (ii) no such investment of the Exchange Fund or losses thereon shall relieve Xxxxxxx, the Surviving Corporation or the Exchange Agent Parent from making the payments required by this ARTICLE 3 and following any losses from any such investmentArticle II or Section 6.2, Xxxxxxx shall promptly provide additional funds to or affect the Exchange Agent to the extent necessary to satisfy Xxxxxxx’ obligations hereunder for the benefit amount of Merger Consideration payable in respect of the Holders, which additional Shares. Any and all interest or other amounts earned with respect to such funds will shall be deemed to be the exclusive property of Parent and shall become part of the Exchange Fund, subject in all cases to the rights of each holder of record of Shares that were converted into the right to receive the Merger Consideration pursuant to Section 2.1 (each, a “Holder”), and any cash amounts in excess of the cash amounts payable under this Article II shall be promptly returned to Parent. The Exchange Fund shall not be used for any other purpose.

Deposit of Merger Consideration. At or promptly following the Effective Time, Xxxxxxx Xxxxxx shall deposit, or shall cause to be deposited, with Computershare, Xxxxxxx’ transfer Inc., or another exchange agent reasonably acceptable to First Mariner (the “Exchange Agent”), ) for the benefit of the holders of record of shares of Southwest First Mariner Common Stock and First Mariner Series A Preferred Stock issued and outstanding immediately prior to the Effective Time (the “Holders”), for exchange in accordance with this ARTICLE Article 3, (i) certificates or evidence of Xxxxxxx Xxxxxx Common Stock in book-entry form issuable pursuant to Section 2.1(cArticle 2(c) and Section Article 2(d) (collectively referred to as “Xxxxxxx Xxxxxx Certificates”) for shares of Xxxxxxx Xxxxxx Common Stock equal to the aggregate Merger Consideration to be issued to holders of First Mariner Common Stock Consideration and First Mariner Series A Preferred Stock and (ii) immediately available funds equal to the aggregate Cash Consideration (together withto, to the extent then determinable, any cash payable in lieu of fractional shares pursuant to Section 2.6 1.13 (collectively, the “Exchange Fund”) and Xxxxxxx Xxxxxx shall instruct the Exchange Agent to timely pay the Merger Consideration and cash in lieu of fractional shares, in accordance with this Agreement. The cash portion of the Exchange Fund shall be invested by the Exchange Agent as directed by Xxxxxxx Xxxxxx or the Surviving CorporationBank. Interest and other income on the Exchange Fund shall be the sole and exclusive property of Xxxxxxx Xxxxxx and the Surviving Corporation Bank and shall be paid to Xxxxxxx Xxxxxx or the Surviving CorporationBank, as Xxxxxxx Xxxxxx directs. No investment of the Exchange Fund shall relieve XxxxxxxXxxxxx, the Surviving Corporation Bank or the Exchange Agent from making the payments required by this ARTICLE Article 3 and following any losses from any such investment, Xxxxxxx Xxxxxx shall promptly provide additional funds to the Exchange Agent to the extent necessary to satisfy Xxxxxxx’ Xxxxxx’x obligations hereunder for the benefit of the Holders, which additional funds will be deemed to be part of the Exchange Fund.