1. Defined Terms.    As used in this Agreement (including in the introductory paragraphs hereto), the following terms have the meanings specified below:

1.1 “1990 Demerger Agreement” means the demerger agreement dated May 10, 1990 between BAT, Wiggins Teape Appleton p.l.c. and Wiggins Teape-Appleton (Holdings) p.l.c.

1.2 “AAA” means the American Arbitration Association.

1.3 “Advisor Claim” is as defined in 8.6(b).

1.4 “Advisor Claim Recoveries” means the amount of monies (less any taxes that may be imposed or may be required to be withheld or later paid (after giving effect to any tax refund (or similar tax offset to the tax imposed or withheld) actually received by the recovering Party)  paid as a result of a judgment, award or settlement of the Advisor Claims, and excludes

those monies that are awarded or agreed in any settlement to be in favor of the LLC for attorneys’ fees or costs.

1.5 “Affiliates” means, with respect to a specified Person or Party, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person or Party specified.

1.6 “Agreement” has the meaning assigned to such term in the introductory statement to this Agreement.

1.7 “API” means Appvion, Inc., formerly known as Appleton Papers Inc.

1.8 “API Caps” means the API Fox River Cap and the API Future Sites Cap, collectively.

1.9 “API Fox River Cap” is as defined in Section 13.1(a).

1.10 “API Future Sites Cap” is as defined in Section 13.1(b).

1.11 “API Counterclaims” means any and all Claims asserted by API against BAT in the UK Indemnity Proceedings.

1.12 “Arbitrator” is as defined in Section 18.

1.13 “Arbitration Decision” means the Award issued by the Panel in the pending arbitration between NCR and API captioned NCR Corporation v. Appleton Papers Inc., AAA No. 13-489-Y-00691-13.

1.14 “Arbitration Demand” is as defined in Section 18.2.

1.15 “BAT” means B.A.T Industries, p.l.c.

1.16 “BAT Indemnity Claims” means any and all Claims asserted by BAT against Windward and API in the UK Indemnity Proceedings.

1.17 “BAT Shortfall” means the aggregate of any payments or contributions made by BAT to the LLC under this Agreement that have not been reimbursed to BAT by way of distribution (or an election otherwise) under Section 11.1(a) and/or 11.3(a) of this Agreement or otherwise by a Party to this Agreement.

1.18 “Business Day” means any day that is not a Saturday, a Sunday or a public holiday or any other day on which commercial banks in New York City or in London are required by law to remain closed.

1.19 “CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq., regulations promulgated thereunder, and any amendments thereto.

1.20 “Claims” means any cause of action, chose of action, claim, counterclaim, investigation, administrative claim, arbitration, lawsuit, litigation or other proceeding brought or pending before any Judicial Authority. 

1.21 “Common Interest Privilege Deed” means the deed between BAT and Windward confirming the terms upon which Windward will provide Documents to BAT in the form annexed hereto as Schedule II.

1.22 “Companies House” means the United Kingdom registrar of companies.

1.23 “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies, or the dismissal or appointment of the management, of a Person, whether through the ability to exercise voting power, by contract or otherwise.  “Controlling” and “Controlled” have meanings correlative thereto.

1.24 “CSA” means, collectively, the 1998 Confidential Settlement Agreement, effective February 12, 1998; the Subsequent Allocation Arbitration Agreement, effective February 12, 1998; the Joint Insurance Recovery Agreement, effective February 12, 1998; and the Subsequent Allocation Arbitration Award, dated November 28, 2005.

1.25 “Dispute Notice” is as defined in Section 18.1.

1.26 “Document” for the purposes of Section 8 shall have the meaning given to it in English Civil Procedure Rule 31.4 (as amended from time to time).

1.27 “Effective Date” is as defined in the introductory statement of this Agreement.

1.28 “Election A BAT/NCR Arbitration” is as defined in Section 12.1(c).

1.29 “Election B BAT/NCR Arbitration” is as defined in Section 12.1(d).

1.30 “Enforcement Action” means United States et al. v. NCR Corp. et al., No. 10-cv-910 (E.D. Wis.).

1.31 “Excess Liability” is as defined in Section 12.3.

1.32 “Final BAT Rebate” is as defined in Section 12.3(e)(7).

1.33 “Final Floor Uplift” is as defined in Section 12.3(e)(2).

1.34 “Final Measuring Date” is as defined in Section 12.3(b)(1).

1.35 “Final Measuring Date Value” is as defined in Section 12.3(e)(1).

1.36 “Final Windward Growth” is as defined in Section 12.3(e)(1).

1.37 “Finding” for the purposes of Section 8.4 shall mean the finding of the United States District Court for the Eastern District of Wisconsin in the Whiting Action that “the terms of the 1978 assumption agreement are not broad enough to encompass the CERCLA liability at issue here [and, thus] API . . . is not a liable party under CERCLA”.

1.38 “Fox River” or “Fox River Site”  shall have the same meaning ascribed to it in the CSA.

1.39 “Fox River Cash Call” is as defined in Section 4.1(b)(1).

1.40 “Fox River Costs” means costs paid by any Settling Party to any third parties, or incurred by any Settling Party whether as a liability, or settlement of liability or otherwise, to any third parties (including but not limited to pursuant to an injunction or judgment issued by a court, or pursuant to the Unilateral Administrative Order issued by the United States and the State of Wisconsin in November 2007), for Site Remediation, Long-Term Monitoring, Government Oversight Costs, CERCLA or other statutory liability, costs incurred by the Fox River Group, and/or Natural Resource Damages at the Fox River Site.  “Fox River Costs” also includes related services, such as but not limited to transportation and disposal, and goods and raw materials, such as but not limited to rocks and gravel, and taxes payable to any governments in connection with such costs.  Fox River Costs excludes defense costs and claims by private parties that would fall within the definition of “Excepted Matters” under the CSA.    For the avoidance of doubt, the definition of Fox River Costs is no broader or narrower than the costs subject to the CSA.

1.41 “Fox River Group” means the group formed by the Fort Howard Corporation (n/k/a Georgia-Pacific LLC), Glatfelter Company, the Riverside Paper Corporation, the U.S. Paper Mills Corporation, and Wisconsin Tissue Mills, Inc., and later joined by NCR and API.

1.42 “Fox River LLC” means the Lower Fox River Remediation LLC, a Delaware Limited Liability Company formed April 27, 2009.

1.43 “Further Excess Liability” means Excess Liability, if any, that BAT incurs after Windward’s Second Payment.

1.44 “Future Sites”  shall have the same meaning ascribed to it in the CSA.   

1.45 “Future Sites Costs” means costs paid or incurred by any Settling Party for Remediation at a Future Site including but not restricted to any costs of the type that had they been paid or incurred in connection with the Fox River Site would have been a Fox River Cost.  Future Sites Costs excludes defense costs and claims by private parties that would fall within the definition of “Excepted Matters” under the CSA.    For the avoidance of doubt, the definition of Future Sites Costs is no broader or narrower than the costs subject to the CSA.

1.46 “Future Sites Surplus” is as defined in Section 11.2(a).

1.47 “General Payments Account” is as defined in Section 6.1(e). 

1.48 “Governments” or “Government” means the Federal Government of the United States of America, through any of its agencies, including but not limited to the Environmental Protection Agency, the Fish & Wildlife Service of the Department of the Interior, the National Oceanic and Atmospheric Administration of the Department of Commerce, and the United States Department of Justice; the Menominee Indian Tribe of Wisconsin; the Oneida Tribe Indians of Wisconsin, the State of Wisconsin, through any of its agencies, including but not limited to the Wisconsin Department of Justice and the Wisconsin Department of Natural Resources; and any other agency of any federal, state, or local governments, or Indian tribe, which may now or in the future assert claims arising out of or relating to the release or disposal of Hazardous Substances to or at the Fox River Site or Future Sites.

1.49 “Government Oversight Costs” means any cost of removal or remedial action incurred by the Governments, including but not limited to the costs of engaging contractors or paying employees to supervise or oversee work being done by PRPs.   “Government Oversight Costs” include any “indirect cost” or other mark-up or multiplier that the Governments generally include on their direct costs of removal or remedial action.

1.50 “Hazardous Substances” means hazardous substances as defined in Section 101(14) of CERCLA, 42 U.S.C. § 9601(14) and its corresponding regulations or amendments; solid or hazardous wastes as defined in Section 1004 of the Resource, Conservation and Recovery Act, 42 U.S.C. § 6903, and its corresponding regulations; and hazardous, dangerous, or toxic wastes or substances as defined or used in the Wisconsin Spill Act and its corresponding regulations or other comparable Wisconsin laws and regulations.

1.51 “Heads of Terms” means the Non-Binding Heads of Terms between BAT, API, NCR and Windward, dated August 15, 2014.

1.52  “Initial Floor Uplift” means an increase in the Windward Floor as further described in Section 12.3(c)(3).

1.53 “Initial Measuring Date” is as defined in Section 12.3(b)(1).

1.54 “Initial Measuring Date Value” is as defined in Section 12.3(c)(2).

1.55 “Initial Windward Growth” is as defined in Section 12.3(c)(2).

1.56 “Interest” means any interest payments calculated on a daily basis with reference to LIBOR as in effect from time to time (unless otherwise specified herein).

1.57 “Interim BAT Rebate” is as defined in Section 12.3(d)(7).

1.58 “Invalidity Event” is as defined in Section 27.2.

1.59 “Judicial Authority” means any governmental or regulatory commission, board, agency or instrumentality for the purposes of resolving a Claim, and any court, tribunal or

judicial body of competent jurisdiction, in each case whether federal, state, county, provincial, and whether local or foreign, and any arbitral panel or arbitrator (except the Arbitrator).

1.60 “LIBOR” means the twelve (12) month U.S. Dollar LIBOR interest rate.

1.61 “LLC” means BTI 2014 LLC, a Delaware limited liability company established by BAT in accordance with Section 3 and governed by the LLC Agreement annexed hereto as Exhibit A.

1.62 “LLC Agreement” means the LLC membership agreement substantially in the form annexed hereto as Exhibit A.

1.63 “LLC Principles” is as defined in Section 3.2.

1.64 “LLC Surplus”  is as defined in Section 11.

1.65 “London Business Day” means any day that is not a Saturday, a Sunday or a public holiday or any other day on which commercial banks in London are required by law to remain closed.

1.66 “Long-Term Monitoring” means any work required to monitor environmental conditions (such as contaminant levels in fish (and other aquatic life), water, sediment, or soil) to assess progress in achieving remedial objectives and any measures required to maintain the effectiveness of the Site Remediation (including, but not limited to, periodic monitoring of engineered caps, repair or replacement of engineered caps, removal of engineered caps followed by dredging, and activities required by institutional controls).

1.67 “Material Obligation” means any of the obligations set out in Sections 2.2,  4,  5,  8,  10,  11,  12,  and 13 of this Agreement.  For the avoidance of doubt, the obligations listed herein are not to be interpreted as the only “material” obligations of the Parties, as the term “material” is used under applicable law.

1.68 “Mediator” is as defined in Section 18.4.

1.69 “Mediation Notice” is as defined in Section 18.2.

1.70 “Natural Resource Damages” is defined by reference to CERCLA § 101 et seq., and in regulations promulgated under CERCLA and in any amendments thereto.

1.71 “NCR” means NCR Corporation.

1.72 “NCR Adjustment” means the sum of (i) the $21.5 million difference between the payment NCR shall receive from the LLC under Section 5.1(i) and the total Fox River damages (with interest) that NCR incurred between April 10, 2012 and December 31, 2013, as claimed in the NCR/API Arbitration; and (ii) the difference between sixty percent (60%) of all Fox River

Costs paid or incurred beginning in January 1, 2014, and the fifty percent (50%) of Fox River Costs that shall be paid by the LLC under Section 5.1(ii) & Section 5.2.

1.73 “NCR/API Arbitration” means the arbitration initiated by NCR against API on March 29, 2013, captioned NCR Corporation v. Appleton Papers Inc., AAA No. 13-489-Y-00691-13.

1.74 “NCR/API Arbitration Record” means all pre-hearing and post-hearing briefing, deposition and trial transcripts, trial exhibits, and correspondence with the panel of arbitrators in the NCR/API Arbitration. 

1.75 “NCR Fox River Demand” is as defined in Section 5.2(a).

1.76 “NCR Future Sites Demand” is as defined in Section 5.3(a).

1.77 “NCR Shortfall” means the NCR Adjustment less any amounts paid to NCR under Section 11.1(b) or Section 11.3(b) of this Agreement.

1.78 “Notice of Election” means notice in writing by BAT to NCR stating whether it has selected Election A or Election B under Section 12.1 substantially in the form of Exhibit D. 

1.79 “Party” or “Parties” means API, Windward, BAT, the LLC or NCR, singly, and API, Windward, BAT, the LLC and NCR, collectively.

1.80 “Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Government or other entity.

1.81 “PRP” means a potentially responsible party under CERCLA.

1.82 “Recoveries” means the amount of monies (less any taxes that may be imposed or may be required to be withheld or later paid (after giving effect to any tax refund (or similar taxoffset to the tax imposed or withheld) actually received by the recovering Party)  recovered as a result of a judgment, decree, award or settlement of the claims of the Settling Parties described in Sections  8,  9,  and 10, and excludes those monies that are awarded in favor of a particular Settling Party solely for attorneys’ fees or costs.  For the avoidance of doubt, Recoveries shall not be reduced by any attorneys’ fees or costs expended in obtaining the judgment, award, decree or settlement.

1.83 “Remediation” means Site Remediation, Long-Term Monitoring, Government Oversight Costs and Natural Resource Damages.

1.84 “Second Adjusted Value” is as defined in Section 12.3(d)(2).

1.85 “Second Excess Liability” means Excess Liability, if any, that BAT incurs after Windward’s Initial Payment. 

1.86 “Second Floor Uplift” means an increase in the Windward Floor as further described in Section 12.3(d). 

1.87 “Second Measuring Date” is as defined in Section 12.3(b)(2). 

1.88 “Second Measuring Date Value” is as defined in Section 12.3(d)(2).

1.89 “Second Windward Growth” is as defined in Section 12.3(d)(2)

1.90 “Section 6 Payments”  is as defined in Section 6.1.

1.91 “Section 6 Payments Account” is as defined in Section 6.1.

1.92 “Section 6 Payment Date”  is as defined in Section 6.1(a).

1.93 “Section 423 Claim” means Claim No: HC13B05329 in the High Court of Justice Chancery Division, between BAT and (1) Sequana; and (2) Windward.

1.94 “Sequana” means Sequana, S.A., a French corporation that is the former corporate parent of Windward.

1.95 “Sequana Dividends” means a dividend of, or in the approximate amount of €443 million (approximately equivalent to $616.5 million at the then-prevailing exchange rate) paid by Windward to Sequana, and/or setoff against a debt owed by Sequana to Windward, on or about December 17, 2008; and a further dividend of, or in the approximate amount of, €135 million (approximately equivalent to $184.2 million at the then-prevailing exchange rate) paid by Windward to Sequana, and/or setoff against a debt owed by Sequana to Windward, on or about May 18, 2009.    

1.96 “Sequana Dividend Claims” means Claim No. HC14E01934 2014 in the High Court of Justice, Chancery Division, between (i) Windward; and (ii) Sequana and certain other Persons and (for the avoidance of doubt) all the claims, choses of action, causes of action or rights of Windward against Sequana and/or Windward’s former directors arising out of or in relation to the Sequana Dividends which are asserted in those proceedings; and any and all other claims, choses of action, causes of action or rights of Windward against Sequana and/or Windward’s former directors arising out of or in relation to the Sequana Dividends.    

1.97 “Sequana Recoveries” means the amount of monies paid (less any taxes that may be imposed or may be required to be withheld or later paid (after giving effect to any tax refund (or similar tax offset to the tax imposed or withheld) actually received by the recovering Party)  as a result of a judgment, award or settlement of the Sequana Dividend Claims and/or Section 423 Claim, and excludes those monies that are awarded in favor of a particular Settling Party for attorneys’ fees or costs. 

1.98 “Sequana Claim QC” is as defined in Section 8.6(d).

1.99 “Settling Parties” or “Settling Party”  means API, Windward, BAT or NCR, singly, and API, Windward, BAT,  and NCR, collectively.

1.100 “Site Remediation” means any response action (including but not limited to any investigations, and remedial or removal actions) or other activities required by the Governments pursuant to an administrative or court order (including an administrative settlement or order on consent), consent decree, settlement or judgment under CERCLA or any other environmental statute, rule or regulation, excepting only the obligations (1) to perform Long-Term Monitoring, (2) to pay Government Oversight Costs, and  (3) to pay Natural Resource Damages or to perform or fund projects designed to compensate for Natural Resource Damages.

1.101 “Term”  or “Termination”  is as defined in Section 29.

1.102 “True-Up Value” is as defined in Section 12.3(e)(2).

1.103 “UK Indemnity Proceedings” means Claim No. 2012 Folio No. 213 in the High Court of Justice of England and Wales, Queen’s Bench Division, Commercial Court between BAT and (1) Windward, and (2) API.  

1.104 “UK Indemnity Proceedings Order” is as defined in Section 2.2(h)(2)

1.105 “Unreturned Funding Amount” is as defined in Section 6.1.

1.106 “Whiting Action” means Appleton Papers Inc. v. George A. Whiting Paper Co., No. 08-cv-16 (E.D. Wis.).

1.107 “Windward” means Windward Prospects Ltd.

1.108 “Windward Assignment” is as defined in Section 8.1.

1.109 “Windward Final Payment” is as defined in Section 12.3(e)(6)

1.110 “Windward Final True-Up” is as defined in Section 12.3(e).

1.111 “Windward Floor” is as defined in Section 12.3(a).

1.112 “Windward Initial Payment” is as defined in Section 12.3(c).

1.113 “Windward’s Second Payment” is as defined in Section 12.3(d)

1.114 “Windward/API Indemnity Agreements” means the Fox River AWA Environmental Indemnity Agreement between New Appleton LLC, API and Arjo Wiggins Appleton p.l.c., and the Fox River PDC Environmental Indemnity Agreement between Paperweight Development Corporation and New Appleton LLC, both dated November 9, 2001, and any amendments thereto.

2. Disposition of Pending Disputes Between Certain Settling Parties.

2.1 Arbitration Decision.  Upon the Effective Date, API and NCR shall instruct the AAA not to release the Arbitration Decision or the substance thereof to any Person, and to instruct the Panel not to release to, or discuss the Arbitration Decision or the substance thereof with, any Person, except as provided for in this Agreement.    

(a)

The AAA shall maintain a copy of the Arbitration Decision in a “locked box” or confidential location.  If the AAA is unwilling or unable to maintain a confidential copy of the Arbitration Decision on behalf of API and NCR, NCR and API shall make alternative arrangements to have the Arbitration Decision remain undisclosed and placed in escrow or other similar location. 

(b)

During the Term of this Agreement, the Arbitration Decision shall not be released to any person except (i) by order of the Arbitrator; (ii) by agreement of all Settling Parties; or (iii) pursuant to Section 27.3(f).

2.2 UK Indemnity Proceedings and Related Matters.    Other than as provided below in this Section 2.2, upon the Effective Date the Settling Parties agree as follows: 

(a)

Windward shall assign the Sequana Dividend Claims and the Advisor Claims in accordance with the provisions of  Section  8.

(b)

Windward shall make the payments set out in Sections 4.2 of this Agreement and the Section 6 Payments (as they become due). 

(c)

Windward shall indemnify BAT pursuant to the terms of Section 12.3 of this Agreement. 

(d)

the BAT Indemnity Claims shall be discontinued pursuant to CPR Part 38, save that there shall be no order as to costs and, for the avoidance of doubt, the default provision in CPR Rule 38.6 shall not apply.  For the avoidance of doubt, this Section 2.2(d) does not affect, any other unknown claims that BAT may have against Windward under the 1990 Demerger Agreement in respect of issues other than liabilities arising in relation to the Fox River and Future Sites.

(e)

API shall make the payments set out in Section 4.3 of this Agreement (as they become due).

(f)

API shall discontinue the API Counterclaims in accordance with Section 2.2(h) below, save that there shall be no order as to costs and, for the avoidance of doubt, the default provision in CPR Rule 38.6 shall not apply.    

(g)

BAT (or a BAT subsidiary) shall subscribe for shares in the LLC in the amounts and on the terms set out in Section 4.1 of this Agreement and the LLC Agreement.

(h)

(1) BAT and API agree to file and serve notices of discontinuance in accordance with CPR Part 38 as soon as reasonably practicable after the UK Indemnity Proceedings Order (as defined below) is sealed.

(i)

BAT agrees that, except for as specifically provided under Section 27.3 below:  (1) it shall not seek to reinstate or re-commence the UK Indemnity Proceedings, or set aside its notice of discontinuance of the UK Indemnity Proceedings, or otherwise seek to revoke the UK Indemnity Proceedings Order or bring any Claims against Windward or API arising out of facts which are the same or substantially the same as those related to the BAT Indemnity Claims; (2)  if in breach of Section 2.2(i)(1) BAT, nevertheless, should seek to do so BAT shall pay Windward and/or API’s costs of opposing any such application on an indemnity basis; and (3)  Windward and API may produce this Section 2.2(i) and Section 27 or this Agreement to the Court if they should consider that it is necessary, to enforce the terms of this Section 2.2(i) and otherwise oppose any application by BAT that seeks to reinstate the UK Indemnity Proceedings.    

(j)

BAT, API and Windward hereby agree that if by the conclusion of the Sequana Dividend Claims litigation (including all appeals) there has been no Invalidity Event and that the provisions of Section 27.3 have not been implemented, the BAT Indemnity Claims and the API Counterclaims shall be waived and released in full, and they shall take all reasonable and necessary steps to obtain an order by consent dismissing the UK Indemnity Proceedings with no order as to costs in the terms of the draft Order annexed hereto as Exhibit H or in substantially the same terms (the “UK Indemnity Proceedings Dismissal Order”).  BAT shall in such circumstances instruct its legal representatives to liaise with the Court to obtain the UK Indemnity Proceedings Dismissal Order and thus to have the UK Indemnity Proceedings dismissed as soon as reasonably practical.  Subject to the provisions of Section 27.3, BAT undertakes not to assert or

pursue any of the BAT Indemnity Claims against API and Windward, and API and Windward undertake not to assert or pursue any of the API Counterclaims against BAT, following execution of this Agreement.

(k)

Except to the extent that a Settling Party believes it is required by any applicable laws, regulatory or legal authority, BAT, API and Windward agree that they shall not make or release any public statement or statements in relation to the UK Indemnity Proceedings Order other than in the form of the statement that appears in Schedule I, unless otherwise agreed by mutual consent of the Settling Parties.

(l)

The agreement to discontinue proceedings or claims set out in this Section 2.2 shall not affect the terms of the indemnity provided by Windward in Section 12.3 and any claims which may be made pursuant to such indemnity.

(m)

Notwithstanding anything else to the contrary in this Agreement, the Parties agree that this Section 2.2 and any dispute arising out of it shall be governed by English law.

3. Establishment of the LLC and LLC Principles.

3.1 Prior to the execution of this Agreement, BAT has established BTI 2014 LLC, a Delaware limited liability company, pursuant to an LLC Agreement substantially in the form of Exhibit A.   The LLC Agreement may only be amended by BAT in accordance with the terms of this Agreement and in any event consistent with the LLC Principles. 

3.2 The “LLC Principles” shall mean, collectively:

(a)

The LLC Agreement shall be in form and substance appropriate to give effect to the terms of this Agreement in all respects, provided that if a conflict exists between the terms of the LLC Agreement and this Agreement, the terms of this Agreement shall govern.  Should a conflict arise between the terms of the LLC Agreement and this Agreement with respect to the rights and obligations of the Parties, BAT shall amend the LLC Agreement to bring it into conformity with this Agreement;

(b)

The LLC shall not act in a manner that is inconsistent with the terms specified in this Agreement.

(c)

The LLC shall hold, pay and distribute funds held by it consistent with the provisions of this Agreement, and the LLC shall not commingle the funds with any other funds or property;

(d)

BAT shall not sell, assign, transfer or otherwise encumber its interest in the LLC to any Person other than a BAT Affiliate,  provided that such

BAT Affiliate shall conduct the business of the LLC in accordance with the terms of this Agreement and the LLC Principles;

(e)

Upon receipt by the LLC of documentation representing a demand for payment pursuant to Section 5 or Section 11 of this Agreement, the LLC shall pay to the applicable Settling Party the amount demanded within seven (7) Business Days, provided that the LLC shall make the payment specified in Section 5.1 on the date specified in Section 5.1;  

(f)

The LLC shall provide the Settling Parties with monthly statements of the credits, debits and balance of the funds held by the LLC;

(g)

All payments made to the LLC shall be in immediately available funds and shall be denominated in United States dollars;

(h)

Except as specified in Section 11.2 of this Agreement, all funds held by the LLC shall be held in cash denominated in United States dollars; 

(i)

BAT shall be responsible for one hundred percent (100 %) of the set-up and operating costs of the LLC.  For the avoidance of doubt, operating costs shall not include any of the LLC’s payment obligations under this Agreement; 

(j)

During the Term of this Agreement and while the LLC still has obligations under Section 11.3, the LLC shall not make any dividends or other distributions in respect of shares in the LLC or otherwise other than those provided for in this Agreement;

(k)

The LLC shall not sell, assign, transfer title or otherwise encumber any of its assets or issue any debt to any party other than as provided for in this Agreement;

(l)

The LLC Agreement shall not be terminable by BAT or its Affiliates, except by written approval of the Settling Parties (such approval not to be unreasonably withheld), before the Termination of this Agreement and before all payments and distributions have been made by the LLC as contemplated by Section 11.3 of this Agreement; 

(m)

At any time, BAT may, acting reasonably, dissolve the LLC provided that in doing so it shall ensure that all assets of the LLC (including without limitation cash and all amounts, rights and assets under this Agreement including rights to any Recoveries) shall either be distributed to and held by BAT and BAT shall assume all obligations of the LLC under this Agreement or, if the dissolution is done at Termination, shall be, on dissolution of the LLC, distributed to the Parties as if the provisions of Section 11 apply to them; and

(n)

Where this Agreement contemplates that the LLC shall make a dividend or other distribution to BAT with respect to its membership interest, such dividend or other distribution shall be made at the option of BAT as a redemption or other cancellation of shares held or to be held by BAT, or as a return of capital, or by way of a dividend in respect of the shares of the LLC, or in any other manner permitted by law,  and for the purposes of facilitating the payment of such dividend or distribution, but without prejudice to Section 3.2(c), the LLC may resolve to reorganize or restructure its membership interests or its capital structure as it sees fit (consistent with the LLC Principles) and to issue or cancel any such membership interests or capital, without the need for the consent of any of the Parties.

3.3 BAT intends to treat (and intends to cause any BAT Affiliate that may, from time to time, own all of the membership interests in the LLC to treat) for U.S. Federal income tax purposes the LLC as a domestic eligible entity that is disregarded as an entity separate from its owner pursuant to Treasury Regulation Section 301.7701-3(b)(1)(ii).

4. Funding Obligations.

4.1 Funding Obligations of BAT.    

(a)

Prior to the date hereof the LLC has issued 1,000 shares to BAT in consideration for (i) the payment by BAT of $77,080,998.35 and further in consideration for BAT’s agreement to pay up such further amounts in respect of such shares in accordance with the terms of this Agreement.  On September 30, the amount of $77,080,998.35 shall be applied on behalf of the LLC towards the funding of Fox River Costs as set forth in Section 5.1 and, for all intents and purposes (including for purposes of Section 4.3), shall be deemed to have been paid in response to a Fox River Cash Call.

(b)

After September 30, 2014, BAT shall make further cash payments by way of paying up for the shares in the LLC issued to it as is mentioned in Section 4.1(a) to enable the LLC to pay any NCR Fox River Demand, as defined in Section 5.2 below, in accordance with, and subject to, the following:

(1)

Upon receipt by the LLC of any NCR Fox River Demand, the LLC shall promptly, and in any event within one (1) Business Day thereafter, determine the difference between the available funds held by the LLC in the General Payments Account and the amount required to pay the NCR Fox River Demand plus an amount equal to any interest due under Section 5.2(b) and, should a negative difference exist, deliver to BAT (with a copy to each of the other Settling Parties) a notice,  in a  form substantially similar to Exhibit D of this Agreement (a  “Fox River Cash Call”), requiring

BAT to make further payment in respect of the shares in the LLC first issued to BAT, in an amount equal to such difference, as contemplated by Section 4.1(b)(2).  

(2)

Subject to clause (3) below, within five (5)  Business Days of receipt of a Fox River Cash Call,  BAT shall pay up such amounts as are specified in any such Fox River Cash Call, in respect of the shares in the LLC first issued to BAT.    

(3)

Notwithstanding the above, BAT shall only pay up further amounts to the LLC in respect of its membership interest in an amount equal to fifty percent (50%) of any portion of a Fox River Cash Call that requires funding from BAT due to API’s or Windward’s default on their payment obligations under this Agreement.  Subject to Section 18,  both BAT and NCR reserve their rights under this Agreement with regard to any amounts they are required to fund under this Section 4.1(b)(3) provided that the LLC shall not be liable to NCR for any amounts that BAT does not fund under this Section 4.1(b)(3) unless and until the default is cured.    

4.2 Funding Obligations of Windward.

(a)

On September 30, 2014, Windward shall pay $10 million to NCR on behalf of the LLC towards the funding of Fox River Costs.

4.3 Funding Obligations of API.     

(a)

On September 30, 2014, API shall pay $6 million to NCR towards the funding of Fox River Costs.    

(b)

On February 1, 2015, API shall pay $4 million to NCR towards the funding of Fox River Costs.

(c)

On every September 1 during the Term of this Agreement, commencing on September 1, 2015, subject to the limitations set forth in Sections 11.5,  13.1(a) and 13.2, API shall pay to NCR the lesser of:

(1)

(x) fifty percent (50%) of the difference between (A) the aggregate amount of payments made by BAT under Section 4.1 pursuant to Fox River Cash Calls and  (B) any dividends or other distributions made by the LLC to BAT as contemplated in this Agreement, minus (y) the sum of the aggregate amount paid by API under this Section 4.3(c); or

(2)

$7.5 million.

(d)

On every September 1 during the Term of this Agreement, commencing on September 1, 2015, subject to the limitations set forth in Sections 11.5,  13.1(b) and 13.2, API shall pay to NCR the lesser of:

(1)

(x) fifty percent (50%) of the difference between (A) the aggregate amount of payments for Future Sites Costs made by BAT by way of paying up the shares in the LLC or otherwise and  (B) any dividends or other distributions made by the LLC to BAT as contemplated in this Agreement, minus (y) the sum of the aggregate amount paid by API under this Section 4.3(d); or

(2)

$7.5 million.

(e)

For the purposes of calculating API’s payments under Sections 4.3(c) and 4.3(d) above, and of accounting for these payments towards the API Caps, any payments API pays to NCR shall be first applied to fund the Fox River Costs and then applied to fund the Future Sites Costs and shall be subject to the limitations set forth in Section 13.2.

(f)

During the Term of this Agreement, for the purposes of calculating the amount of API’s payment under Sections 4.3(c) and 4.3(d), on August 15 of each year the LLC shall inform API and NCR of (i) the aggregate amounts BAT has paid up in respect of it shares pursuant to Fox River Cash Calls or any payments for Future Sites Costs made by BAT by way

of paying up the shares in the LLC or otherwise, respectively, and (ii) the aggregate amount of any dividends or other distributions BAT has received as contemplated in this Agreement.

5. Payments to NCR from the LLC.

5.1 Payment of Past Fox River Costs.  On September 30, 2014, the LLC shall make a one-time payment to NCR in the amount of $87,080,998.35 and API shall make the payment of $6 million in accordance with Section 4.3(a), for a total amount of $93,080,998.35, of which (i) $64.5 million shall be paid to provide funding to NCR for certain Fox River Costs (plus interest) that NCR incurred from April 10, 2012 through December 31, 2013; and (ii) $28,580,998.35   shall be paid to provide funding to NCR for certain Fox River Costs that NCR incurred from January 1, 2014 through October 1, 2014.

5.2 Payments for Post-October 1, 2014 Fox River Costs.  All Fox River Costs paid by NCR or invoiced to NCR after October 1, 2014, shall be funded fifty percent (50%) by NCR and fifty percent (50%) by the LLC and, where applicable, by API in accordance with Sections 4.3(b) and 4.3(c).

(a)

Upon paying (or being invoiced)any Post-October 1, 2014 Fox River Costs, NCR shall submit a written demand in a  form substantially similar to Exhibit E of this Agreement, for fifty percent (50%) of such Fox River Costs to the LLC  (an  “NCR Fox River Demand”).  Absent special circumstances, NCR shall make a maximum of one NCR Fox River Demand per month.    NCR shall provide documentation in connection with the NCR Fox River Demand evidencing that NCR has paid or has been invoiced to pay all such Fox River Costs.  For the avoidance of doubt, an NCR Fox River Demand supported by documentation showing that NCR has paid or has been invoiced to pay a cash call issued to NCR by the Fox River LLC (in respect of Fox River Costs) shall be sufficient to support an NCR Fox River Demand and to authorize payment by the LLC under Section 5.2(b).  The other Settling Parties may request that NCR provide further supporting documentation, and NCR shall provide such documentation if the request is reasonable. 

(b)

Within seven (7) Business Days of receiving an NCR Fox River Demand, the LLC shall apply any funds held by the LLC in the General Payments Account to pay to NCR the full amount of the NCR Fox River Demand.    If within seven (7) Business Days of receiving an NCR Fox River Demand and subject to Section 4.1(b)(3), BAT has failed to fund the LLC in whole or in part or the LLC has failed to remit payment to NCR in whole or in part, the LLC shall pay interest at the rate of LIBOR+ 2% per annum to NCR until such funding or payment is made and shall add an amount equal to such interest to the next Fox River Cash Call issued to BAT under Section 4.1 or, if no NCR Fox River Demand is received by the LLC in

the month following the date the delinquent NCR Fox River Demand was due, issue a special cash call to BAT for an amount equal to the interest accrued under this Section 4.1(b)(3).    

(c)

Any objections, disputes, or requests for additional documentation concerning an NCR Fox River Demand shall not excuse, nor allow any delay of, the payment to, or funding of, the LLC by any Settling Party hereto or the payment by the LLC of the NCR Fox River Demand amount.  Any such dispute shall be subject to the dispute resolution procedures set forth in Section 18,  except that in any such dispute a Settling Party objecting to payment may raise a claim based on its objection only if the NCR Fox River Demand has been paid by the LLC (or, in the case of any dispute pertaining to multiple NCR Demands on the same or similar grounds, only after all such NCR Fox River Demands received by BAT prior to the filing of a Dispute Notice have been paid by the LLC).    Should there be any delay by any Settling Party in the payment to, or funding of, the LLC or in the payment of any NCR Fox River Demand, such Settling Party shall have two (2) Business Days during which to cure such delay and provide the required funding.  If such funding or payment is not provided within two (2) Business Days, the Arbitrator shall have the power to grant any remedy to address such funding or payment failure, including but not limited to requiring the delinquent Settling Party to pay Interest at the rate of LIBOR+ 2% per annum to NCR  (as determined two (2) London Business Days before such funding or payment was due).  If it is determined by the Arbitrator that NCR should not have been paid any payment or part thereof in an NCR Fox River Demand, the Arbitrator shall have the power to require NCR to repay such payment (or part thereof) plus Interest at the rate of LIBOR+ 2% per annum measured from the date the payment has been made to NCR until the date it is repaid by NCR to the LLC.

(d)

NCR shall credit the LLC for any payments it has received from APIunder Sections 4.3(b) and 4.3(c) and shall deduct an amount equal to such payments from the next NCR Fox River Demand (or Demands) that NCR submits to the LLC.

5.3 Payments of Future Site Surplus towards Future Sites Costs.   In the event of a Future Site Surplus under Section 11.2, the Future Site Surplus shall be applied to any Future Sites Costs as follows: 

(a)

Upon paying or incurring any Future Sites Costs, NCR shall submit a written demand, in a  form substantially similar to Exhibit E of this Agreement, for sixty percent (60%) of such Future Sites Costs to the LLC (the “NCR Future Sites Demand”).  NCR shall provide documentation in connection with its demand evidencing that NCR has paid or is required to

pay such Future Sites Costs.  The other Settling Parties may request that NCR provide further supporting documentation, and NCR shall provide such documentation if the request is reasonable.  

(b)

Within five  (5)  Business Days of receiving an NCR Future Sites Demand,  the LLC shall tender payment to NCR of the lesser of (i) the full NCR Future Sites Demand amount, or (ii) the remaining amount held by the LLC in the General Payments Account, subject to the same process and conditions set forth in Section 5.2(c), it being understood and acknowledged that such the amount held by the LLC may be reduced by loans, dividends or other distributions previously made by the LLC to BAT under Section 11.1(a) and Section 11.4 with respect to BAT’s membership interest.    

(c)

NCR shall credit the LLC for any payments it has received from API under Section 4.3(d) and shall deduct an amount equal to such payments from the next NCR Future Sites Demand (or Demands) that NCR submits to the LLC.

5.4 During the Term of this Agreement and subject to Section 5.2(c),  on a monthly basis, NCR shall provide the Parties with estimates of monthly and total Fox River Costs and, when available, revised estimates of Long Term Monitoring Costs, FRG Costs, Government Oversight Costs and NRD Costs when updated.

5.5 Except for its obligations under Section 8.2(e) and 8.3(c), nothing in this Agreement shall require BAT to make any payments into, or in respect of its shares in, the LLC in order to fund any Future Sites Costs.  Except for its obligations under Sections 5.3 and 11.2, nothing in this Agreement shall require the LLC to make any payments in respect of Future Sites Costs.  For the avoidance of doubt,  nothing in this Agreement shall affect NCR and BAT’s rights and obligations under the CSA, as between themselves, with respect to Future Sites Costs (if any).

6. Payments from Windward.    

6.1 The LLC shall be entitled to payments towards the funding of the Fox River Costs or Future Site Costs (the “Section 6 Payments”) from Windward based on the difference between the aggregate amount of payments made by BAT to the LLC under Section 4.1 in respect of its shares in the LLC and the aggregate amount of dividends or other distributions received by BAT from the LLC under Section 11 in respect of its shares in the LLC (such difference the “Unreturned Funding Amount”) until the earlier of (i) such time as BAT has received dividends or other distributions from the LLC under Section 11 in respect of its shares in the LLC in an amount at least equal to the sum of all payments made by BAT to the LLC under Section 4.1 (subject to Section 11.5), or (ii) Termination.  Section 6 Payments shall be made by Windward to the LLC on the following terms:

(a)

Section 6 Payments shall be made on an annual basis, in arrears, on September 1 of every year (or on the first Business Day thereafter) (the “Section 6 Payment Date”), or in the event that the Agreement should terminate on a day other than a Section 6 Payment Date, on the Termination date and shall be calculated to be an amount equal to fifty percent (50%) of the prorated Interest that would have accrued on the Unreturned Funding Amount since the previous Section 6 Payment Date at a rate of LIBOR + 2% per annum  (LIBOR being determined and fixed for a given period with respect to which Section 6 Payments are to be made (2) London Business Days before the beginning of such period).

(b)

No fewer than ten (10) Business Days before the Section 6 Payment Date, the LLC shall provide Windward with a  calculation of the Section 6 Payments payable on such Section 6 Payment Date.  This statement shall include a breakdown of such calculation with respect to the Unreturned Funding Amount to the LLC by BAT for Fox River Costs.

(c)

On the Section 6 Payment Date or the Termination date,Windward shall pay its Section 6 Payments payable on such date, and the LLC shall credit funds so received, to the account of the LLC designated as the Section  6 Payments Account for payments in Section 7.

(d)

The LLC shall apply any funds received by it under this Section 6 to make a dividend or distribution to BAT with respect to its membership interest in the LLC.

(e)

The LLC shall deposit all payments received by it other than Section 6 Payments to the account of the LLC designated as the General Payments Account in Section 7 (the “General Payments Account”).  Except for distributions contemplated in Section 6.1(d), all payments and distributions to be made by the LLC, and any determination by the LLC as to the availability of funds, shall be made by using funds credited to the General Payments Account.  For the avoidance of doubt, the LLC shall not use the funds in the General Payments Account for any purpose other than those allowed by this Agreement.  The funds standing to the credit of the Section 6 Payment Account shall only be used to make distributions contemplated under Section 6.1(d). 

7. Form of Payments.  All payments under this Agreement shall be made by wire transfer in immediately available funds and shall be denominated in United States dollars and paid to the following accounts:

8. Assignment of the Sequana Dividend Claims and the Advisor Claims.

8.1 Windward hereby assigns absolutely all of its present and future rights, title, interest, and benefit in and to:   (i) the Sequana Dividend Claims to the LLC; and (ii) the Advisor Claims to the LLC as of the Effective Date (the “Windward Assignment”) on the following terms:

(a)

Windward shall cooperate fully with the LLC to give full effect to the Windward Assignment including (but not limited to) supporting any related court application to add the LLC for or substitute the LLC for Windward as a party to the Sequana Dividend Claims.

(b)

BAT shall fund any and all legal and other costs that the LLC incurs in order to pursue the Sequana Dividend Claims following the Windward Assignment. 

(c)

For the avoidance of doubt any Sequana Recoveries will be dealt with in accordance with Section 10 of this Agreement.

(d)

Each of the Settling Parties represents and warrants that it has not sold, assigned or otherwise transferred (and will not purport to sell, assign or transfer) any Claims that it has (being Claims which are subject to this Agreement) against any of the other Settling Parties to this Agreement.  For the avoidance of doubt, in respect of Windward, this includes any interest that Windward has in the API Counterclaims.

8.2 BAT’s Control of the Sequana Dividend Claims.    Following the Windward Assignment and subject to Sections 8.4 and 8.5, the LLC shall allow BAT to assume full control of the Sequana Dividend Claims.  In controlling the Sequana Dividend Claims, BAT shall:

(a)

Use all commercially reasonable and lawful means to enhance the prospect of the success of the Sequana Dividend Claims and to maximize the value of any recovery on such claims;

(b)

Provide LLC, API, Windward and NCR with timely and regular updates on the progress of the Sequana Dividend Claims;

(c)

Provide Windward with a copy of the final draft of any pleading to be filed in sufficient time to allow Windward forty-eight (48) hours (unless impractical to do so) to review and comment upon the relevant pleading;

(d)

Consider and so far as is reasonably practical incorporate into the documents referred to in Section 8.2(c) any reasonable comments received from Windward relating to the matters referred to in Section 8.4; and

(e)

In the event that BAT obtains Sequana Recoveries and Advisor Claim Recoveries, pay those Sequana Recoveries, if any, and Advisor Recoveries, if any, to the LLC.

8.3 BAT’s Section 423 Claim.    Windward shall remain a party to the Section 423 Claim.  BAT and Windward agree that (as far as is reasonably practical) they shall not take an adverse position to each other in the Section 423 Claim.  In particular, BAT and Windward agree that:    

(a)

Windward and BAT shall cooperate to ensure that they maximize any Sequana Recoveries from the Section 423 Claim.

(b)

BAT shall not seek any damages or adverse award against Windward in the Section 423 Claim. 

(c)

BAT shall take all reasonable steps to ensure that any Sequana Recoveries that result from the Section 423 Claims are paid directly to the LLC, failing which to Windward (who shall hold them on behalf of the LLC, and pay them to the LLC in accordance with Section 10.3).  To the extent

that Recoveries from the Section 423 Claim are paid to BAT instead of Windward, BAT agrees that it holds such Recoveries for the LLC and shall pay such Recoveries to the LLC.

(d)

Entering into this Agreement extinguishes any adversity (should any exist) with respect to the Section 423 Claim, and that by sharing any Documents pursuant to this Agreement neither of them intends to waive any confidentiality or privilege in such Document as against third parties.

8.4 In progressing the Sequana Dividend Claims,  the Section 423 Claim and the Advisor Claims (to the extent such Advisor Claims are pursued)  BAT shall not knowingly take any:  (i) position to prejudice or otherwise undermine in any way whatsoever the Finding; (ii) action that would have the effect of incurring or increasing API’s Fox River (or Future Site) liability; or (iii) action that would diminish any of API’s or NCR’s potential Recoveries from the Claims referred to in Section 9.

8.5 Windward’s Assistance and Cooperation in the Sequana Dividend Claims,  the Section 423 Claim and the Advisor Claims.  Windward shall provide all necessary and reasonable assistance to the LLC and to BAT to enable BAT to progress the Sequana Dividend Claims, the Section 423 Claim, and the Advisor Claims.   In particular, Windward shall:

(a)

By no later than October 6, 2014, provide the LLC and BAT with access to and the right to obtain, consistent with the Common Interest Privilege Deed, all Documents (including, for the avoidance of any doubt, all privileged material) in its (or in its Controlled Affiliates’ which for the avoidance of doubt shall include AWAB and AWBH )  possession, custody or control which are relevant to the Sequana Dividends, the Sequana Dividend Claims, and the Advisor Claims, including, as soon as reasonably practicable, any relevant documents held by third parties that are subject to Windward’s control.  API agrees that it shall provide any consents necessary for the provision of AWAB documents;

(b)

Immediately notify the LLC and BAT if any Documents not provided in accordance with Section 8.5(a) come to Windward’s attention at any time during the pendency of the Sequana Dividend Claims,  the Section 423 Claim, and/or the Advisor Claims (to the extent such Advisor Claims are pursued) (the “Additional Windward Documents”); 

(c)

Provide the Additional Windward Documents as soon as is reasonably practical after becoming aware of the existence of such documents in accordance with Section 8.5(b);

(d)

Assist and cooperate in BAT’s or the LLC’s compliance with any court order and/or any case management directions including in particular, but not limited to, any disclosure orders;

(e)

Designate a single contact person who will be reasonably available to BAT and who will coordinate the provision to BAT or the LLC of reasonable assistance, including but not limited to coordinating BAT’s access to witnesses of fact for fact-checking and follow-up questions (factual or otherwise) as BAT reasonably deems necessary to vigorously pursue the Sequana Dividend Claims and/or any Advisor Claims that are pursued;  

(f)

Ensure that any witnesses of fact within Windward’s control are reasonably available (i) for the LLC’s or BAT’s lawyers to interview; (ii) to prepare and to provide witness statements; and (iii) to prepare for, attend and give oral evidence in any court hearings including trial;

(g)

Assist with the preparation and verification of any statements of case and/or other reports or documents to be provided to the court prepared for the purposes of the Sequana Dividend Claims,  the Section 423 Claim, and/or the Advisor Claims (to the extent such Advisor Claims are pursued) to the extent that the LLC or BAT reasonably requires it to do so;

(h)

Not knowingly take any: (i) position to prejudice or otherwise undermine in any way the Sequana Dividend Claims and/or the Section 423 Claim, and/or the Advisor Claims (to the extent such Advisor Claims are pursued); or (ii) action that would diminish any potential recoveries in the Sequana Dividend Claims,  the Section 423 Claim, and/or the Advisor Claims (to the extent such Advisor Claims are pursued).  For the avoidance of doubt, nothing in this Agreement shall be interpreted to limit or restrict any witness from providing full, accurate, and complete testimony should such witness be required to provide sworn or attested testimony at deposition, in a witness statement, via affidavit, at trial, or in any other forum, proceeding, or manner;

(i)

Provide the LLC and BAT with a copy of the final draft of any statements of case and/or any other documents to be filed by Windward in the Section 423 Claim to allow the LLC and BAT not less than two (2) Business Days (unless impractical to do so) to review and comment upon the relevant pleading before it is filed; and

(j)

Consider and so far as reasonably practical incorporate into the documents referred to in Section 8.5(i) above any reasonable comments received from the LLC or BAT relating to the Section 423 Claim.

(k)

For the avoidance of doubt, the Arbitrator shall have the power to order that a Party produce such documents as required to comply with this Section 8.

8.6 Advisor Claims.    

(a)

By no later than October 6, 2014, Windward shall provide BAT with access to and the right to obtain all Documents (including, for the avoidance of any doubt, all privileged material) in its (or in its Controlled Affiliates’, which for the avoidance of doubt shall include AWAB and AWBH)  possession or control which are relevant to an Advisor Claim (as defined in Section 8.6(b));

(b)

Notwithstanding the Windward Assignment, if, during the term of this Agreement, the LLC or BAT develops a good faith belief that Windward may have reasonable and viable claims against Freshfields Bruckhaus Deringer LLP, PriceWaterhouseCoopers LLP (or any of its affiliates), or Aon Accuracy (collectively, the “Advisors”) arising out of or relating to the Sequana Dividends (an “Advisor Claim”), then the LLC or BAT shall, in writing, notify Windward of its good faith belief and provide Windward with the evidentiary, and legal basis for its good faith belief so that Windward can make an independent judgment of the strength, viability and chances of success for such claim.    

(c)

[Subject to a request for confidential treatment.  Separately filed with the Commission.]

(d)

[Subject to a request for confidential treatment.  Separately filed with the Commission.]

(e)

[Subject to a request for confidential treatment.  Separately filed with the Commission.]

(f)

BAT shall assume all cost obligations in respect of or in any way connected with the pursuit, discontinuance or settlement of any Advisor Claim including but not limited to costs, attorneys’ fees, and payments, if any, required by adverse costs orders which may be made against Windward and/or the LLC and/or BAT.    

(g)

Any  Advisor Claim Recoveries from any Advisor Claim brought pursuant to this Section 8.6, shall be considered for all intents and purposes as Sequana Recoveries and shall be paid in accordance with Section 10 of this Agreement.

(h)

[Subject to a request for confidential treatment.  Separately filed with the Commission.]

8.7 Upon execution of this Agreement, BAT, the LLC and Windward shall enter into a Common Interest Privilege Deed in the form annexed hereto at Schedule II to this Agreement.

8.8 Notwithstanding anything else to the contrary in this Agreement, the Parties agree that the Windward Assignment and any dispute arising out of this Section 8, other than a dispute arising out of Section 8.1(c), shall be governed by English law.

8.9 NCR and API agree that upon reasonable request from the LLC, they will search for documents relevant to the Sequana Dividend Claims and the Advisor Claims, and if any are found to exist, they will be provided to the LLC.

8.10 Should the LLC recover the gross amount of the judgment or settlement from the Sequana Dividend Claims or Advisor Claims, and the receipt of those funds causes a Settling Party to incur tax, the LLC shall reimburse the taxed Settling Party the amount of the tax prior to the payments being paid in accordance with Section 11.

9. Other Litigation Against Non-Parties.

9.1 The Parties shall vigorously pursue reasonable and viable claims and defenses (including as to amounts funded by any Settling Party under this Agreement) that they may have against [Subject to a request for confidential treatment.  Separately filed with the Commission.] and/or Sequana and/or the Advisors (subject to Section 8.6 and Section 9.5), so as to minimize the Settling Parties’ overall exposure to Fox River or Future Sites liabilities.    [Subject to a request for confidential treatment.  Separately filed with the Commission.].

9.2 [Subject to a request for confidential treatment.  Separately filed with the Commission.]

9.3 [Subject to a request for confidential treatment.  Separately filed with the Commission.]

9.4 [Subject to a request for confidential treatment.  Separately filed with the Commission.]

9.5 Nothing in this Section shall require API to pursue any Claims in respect of the Sequana Dividends that API may have, if any, directly against Sequana.

9.6 [Subject to a request for confidential treatment.  Separately filed with the Commission.]

10. Payments of Recoveries from Certain Third-Party Litigations.  Within ten (10) Business Days of their receipt, any Recoveries from the below-referenced third-party litigations shall be paid as follows:

10.1 [Subject to a request for confidential treatment.  Separately filed with the Commission.]

10.2 [Subject to a request for confidential treatment.  Separately filed with the Commission.]

10.3 Sequana Recoveries.    Pursuant to the obligation to pay the Sequana Recoveries to the LLC in Section 8.1(c) and BAT’s obligation to pay Sequana Recoveries to the LLC in Sections 8.2(e),  8.3(c), and 8.6(g), the LLC shall receive any and all Sequana Recoveries obtained.  The LLC shall pay the following portions of any such recoveries to Windward:  (i) three percent (3%) of the first $100 million of any Sequana Recoveries; plus (ii) the first $5 million in any Sequana Recoveries exceeding $100 million; plus (iii) three percent (3%) of any Sequana Recoveries above $105 million to be paid into the bank account designated by Windward in Section 7 of this Agreement.

11. Distributions of LLC Surplus.    At the time of the events specified in this Section, the LLC shall pay any funds held by it (the “LLC Surplus”) as follows:

11.1 Upon the later of (i) the conclusion of Site Remediation at the Fox River or (ii) the conclusion of the Sequana Dividend Claims and payment of the Sequana Recoveries (if any) to the LLC, the Settling Parties shall provide the LLC with a notice, in a form substantially similar to Exhibit F of this Agreement, or in the absence of agreement on such a notice, with a decision by the Arbitrator, and the LLC shall make the following payments to the extent funds are available for such payments in the General Payments Account:

(a)

First, to BAT, a dividend or other distribution in an amount equal to the lesser of (i) any funds held by the LLC in the General Payments Account or (ii) an amount equal to the aggregate amount subscribed by BAT for its shares in the LLC under Section 4.1.

(b)

Second, to NCR, an amount equal to the lesser of (i) any funds held by the LLC in the General Payments Account after payment under Section 11.1(a) has been made or (ii) an amount equal to the NCR Adjustment.  NCR shall claim no additional interest on amounts paid to NCR under this Section and shall forever waive any such claim for such additional interest payments for the NCR Adjustment under this Section (except as provided by Sections 5.2(c) and 12.1).

11.2 Future Sites Surplus.    

(a)

Any remaining funds held by the LLC in the General Payments Account after the LLC has made the payments specified in Section 11.1 (the “Future Sites Surplus”) shall be applied in accordance with Section 5.3 and shall not be paid to NCR, API or Windward or distributed to BAT, as relevant, for any other purpose during the Term of this Agreement.  Pending such application in accordance with Section 5.3,  the LLC shall adopt an appropriate and prudent investment strategy, subject to the approval of the Parties (such approval not to be unreasonably withheld).  Absent such approval, the LLC shall be authorized to invest the funds on deposit with a reputable, first class, banking institution.    

(b)

In the event that BAT makes further payments for the subscription of its shares in the LLC (or otherwise) with respect to Future Sites Costs and thus API commences making payments with respect to Future Sites Costs pursuant to Section 4.3(d), any obligation of API to continue to make additional payments with respect to Future Sites Costs shall be suspended unless and until the entire Future Sites Surplus has been used to fund Future Sites Costs and BAT makes additional payments for the subscription of its shares in the LLC with respect to Future Site Costs (under Section 11.5(d) or otherwise) after receiving its dividends or distributions under Section 11.1 or electing otherwise under Section 11.4,requiring API to make additional payments under Section 4.3(d).

11.3 At Termination (but only after Sections 11.1 and 11.2 have been complied with), the Settling Parties shall provide the LLC with a notice, in a form substantially similar to Exhibit G of this Agreement, or in the absence of agreement on such a notice, with a decision by the Arbitrator, and  the LLC shall make the following payments to the extent funds are available for such payments in the General Payments Account:

(a)

First, to BAT, a dividend or other distribution in an amount equal to the lesser of:  (i) all funds held by the LLC in the General Payments Account or (ii) an amount equal to the aggregate amount subscribed to by BAT for its shares in the LLC pursuant to Section 4.1 minus the sum of the following two items (A) any amounts paid to BAT by way of dividends or other distributions from the LLC under Section 11.1 above (or otherwise elected under Section 11.4) and (B) any amounts paid to BAT by NCR and/or Windward under Section 12 below;

(b)

Second, to NCR, an amount equal to the lesser of:  (i) all remaining funds held by the LLC in the General Payments Account following the payment under Section 11.3(a); or (ii) an amount equal to the NCR Adjustment (as of that date) minus the sum of the following two items (A) any amounts paid to NCR by the LLC under Section 11.1(b) , and (B) any amounts paid to NCR by BAT under Section 12.1;

(c)

Third, to API, an amount equal to the lesser of (i) all remaining funds held by the LLC in the General Payments Account following the payment under Section 11.3(b) or (ii) an amount equal to the aggregate amount API paid under Sections 4.3;

(d)

Fourth, to Windward, the remaining funds held by the LLC in the General Payments Account following the payment under Section 11.3(c).

11.4 BAT may elect to cause the LLC to retain any amounts which BAT is entitled to receive as a dividend or distribution under Section 11.1(a), and in such circumstances the LLC shall be free to distribute such amounts to BAT at a later date, or to loan such funds to BAT, or such amounts may be applied by the LLC in respect of Future Sites.  The LLC may use BAT funds it retains under this Section 11.4 to fund sixty percent (60%) of Future Sites Costs paid or incurred by NCR after exhausting the Future Sites Surplus.    

11.5 If BAT makes an election under Section 11.4, such election shall not impact the calculation of any payment obligations of API or Windward under the terms of this Agreement and the amounts which BAT would have been entitled to receive as a dividend or distribution under Section 11.1(a) shall be treated for the purposes of the payment obligations of API or Windward as if they had been paid to BAT.  By way of example, and without limitation:

(a)

Windward shall not be obligated to pay Section 6 Payments on any Unreturned Funding Amount to the extent BAT would have been entitled to receive a dividend or distribution under Section 11.1(a);

(b)

such amounts shall be treated as if they had been paid to BAT for purposes of calculating any BAT Shortfall, Excess Liability, and/or Future Excess Liability;

(c)

such amounts shall be treated as if they had been declared as a dividend or distributed to BAT and thereby reduce the amount of the aggregate payments made by BAT under Section 4.1 for the purposes of calculating API’s payment obligations under Section 4.3(c);  

(d)

such amounts shall not constitute a payment by BAT towards Future Sites Costs for the purpose of API calculating the amount of its payment obligations under Section 4.3(d) until and to the extent that any portion of such amounts so paid are in fact applied by the LLC towards Future Sites Costs.  By way of further example, if BAT elects that the LLC retain $60 million under Section 11.4 and, after exhaustion of the Future Sites Surplus, the LLC pays $10 million of that money to NCR towards Future Sites Costs, only the $10 million actually paid to NCR shall be considered a payment by BAT towards Future Sites Costs for the purpose of Section 4.3(d). 

12. The Settling Parties’ Rights with Respect to Shortfall of Funds.

12.1 BAT and NCR Rights and Agreement as to Either Party’s Shortfall.    

(a)

Within thirty (30) Business Days after execution of this Agreement, NCR shall provide BAT on a confidential basis with a copy of the NCR/API Arbitration Record.  API and Windward hereby consent to disclosure of the NCR/API Arbitration Record to BAT.    

(b)

On or before June 15, 2015, BAT shall provide NCR with a Notice of Election (in the form in the form annexed hereto as Exhibit C or in substantially the same terms) specifying its selection of either Election A or Election B, as set forth in this Section.    

(c)

Election A:  if BAT selects Election A,  then: 

(1)

At any time after Termination, either BAT or NCR shall be authorized to commence an arbitration procedure against each other under section 10(b) of the CSA with respect to the Fox River Costs (the “Election A BAT/NCR Arbitration”).

(2)

In any Election A BAT/NCR Arbitration, BAT shall be allowed to claim that its payments for the subscription of shares in the LLC for the Fox River Costs were made in excess of what BAT was properly required to pay under the CSA, provided that BAT’s sole remedy would be capped at no more than the BAT Shortfall (plus interest) and BAT shall forever waive the right to recover the remainder from NCR;  

(3)

In any Election A BAT/NCR Arbitration, NCR shall be allowed to claim that BAT is liable under the CSA for sixty percent (60%) of all Fox River Costs, and thus that BAT was liable for the amounts paid by BAT for subscribing its shares in the LLC, and is further liable to NCR for the NCR Shortfall,  provided that NCR’s sole remedy would be capped at no more than the NCR Shortfall (plus interest) and NCR shall forever waive the right to recover the remainder from BAT. 

(d)

Election B:  If BAT selects Election B, then: 

(1)

At any time after Termination of this Agreement, either BAT or NCR shall be authorized to commence an arbitration procedure against each other under section 10(b) of the CSA with respect to the Fox River Costs (the “Election B BAT/NCR Arbitration”).

(2)

In any Election B BAT/NCR Arbitration, BAT shall be allowed to claim that its payments to subscribe shares in the LLC for the Fox River Costs were made in excess of what BAT was properly required to pay under the CSA, provided that BAT’s sole remedy would be capped at no more than fifty percent (50%) of the BAT Shortfall (plus interest) and BAT shall forever waive the right to recover the remainder from NCR;  

(3)

In any Election B BAT/NCR Arbitration, NCR shall be allowed to claim that BAT is liable under the CSA for sixty percent (60%) of

all Fox River Costs, and thus that BAT was liable for the NCR Shortfall, provided that NCR’s sole remedy would be capped at no more than fifty percent (50%) of the NCR Shortfall (plus interest), and NCR shall forever waive the right to recover the remainder from BAT.  

(e)

The election selected in BAT’s Notice of Election shall be final as of June 15, 2015.    

12.2 Nothing in this Agreement shall affect NCR’s and BAT’s rights and obligations under the CSA, as between themselves, with respect to Future Sites Costs.  Notwithstanding anything to the contrary in this Agreement, including Section 18, NCR and BAT shall be allowed to arbitrate such rights and obligations, in accordance with the process laid out in section 10(b) of the CSA, at any time.

12.3 BAT Rights Against Windward In Case of a BAT Shortfall.  Notwithstanding the rights BAT has under Sections 12.1 and 12.2, Windward shall indemnify BAT for any BAT Shortfall and for any further liability that BAT may have for the payment of Fox River Costs or Future Sites Costs (the “Excess Liability”), subject to the following limitations: 

(a)

As of the Effective Date of the Agreement, Windward’s liability to BAT in respect of any Excess Liability shall be limited to an amount which shall not cause Windward’s net assets to be reduced below $25 million (the “Windward Floor”).

(b)

In the event of Excess Liability, Windward shall make no more than three payments to BAT on the following schedule:

(1)

First payment:  at the same time as that referred to in Section 11.1,  i.e., upon the later of (i) the conclusion of Site Remediation at the Fox River or (ii) the conclusion of the Sequana Dividend Claims and payment of Sequana Recoveries (if any) pursuant to Section 10.3 (the “Initial Measuring Date”).

(2)

Second payment:  at a time of BAT’s choosing, but in no event any sooner than two (2) years after the Initial Measuring Date (the “Second Measuring Date”).  BAT shall provide Windward with notice of its election to receive this second payment one hundred twenty (120) days prior to the Second Measuring Date.

(3)

Final true-up:  upon Termination of the Agreement in accordance with Section 29 (the “Final Measuring Date”).

(c)

Windward’s payment on the Initial Measuring Date (“Windward’s Initial Payment”), to the extent that any Excess Liability exists on that date, shall be calculated as follows:

(1)

The Windward Floor shall be increased by the Initial Floor Uplift, if any, calculated in accordance with the formula below in Section 12.3(c)(3).    

(2)

There shall be an Initial Floor Uplift in the event that there is a  positive difference between the value of Windward’s net assets as of the Initial Measuring Date (the “Initial Measuring Date Value”) and $25 million (such difference being the “Initial Windward Growth”). 

(3)

The Initial Floor Uplift shall be the total of the following:

(4)

Windward’s Initial Payment shall equal the lesser of (a) the Excess Liability or (b) the difference calculated by subtracting (i) the sum of the Windward Floor plus the Initial Floor Uplift from (ii) the Initial Measuring Date Value.

(5)

For clarity, if expressed as a mathematical formula, Section 12.3(c)(4)(b) shall mean as follows:

(d)

Windward’s payment on the Second Measuring Date (“Windward’s Second Payment”) to the extent Second Excess Liability exists on that date, shall be calculated as follows:    

(1)

The Windward Floor shall be increased by the Second Floor Uplift, if any, calculated in accordance with the formula below in Section 12.3(d)(3). 

(2)

There shall be a Second Floor Uplift in the event there is a positive difference between $25 million and the Second Adjusted Value, such difference being the “Second Windward Growth”.  The “Second Adjusted Value” shall be equal to the sum of the value of Windward’s net assets as of the Second Measuring Date (the “Second Measuring Date Value”) plus Windward’s Initial Payment.

(3)

The Second Floor Uplift shall be the total of the following: 

(4)

Windward’s Second Payment shall equal the lesser of (a) the Excess Liability plus the Second Excess Liability less Windward’s Initial Payment or (b) the difference calculated by subtracting (i) the sum of the Windward Floor, the Second Floor Uplift and Windward’s Initial Payment from (ii) the Second Adjusted Value.    

(5)

For clarity, if expressed as a mathematical formula, Section 12.3(d)(4)(b) shall mean as follows: 

(6)

If the value of the calculation for Windward’s Second Payment in Section 12.3(d)(4)(b) is a positive number, then Windward shall pay BAT that amount.

(7)

If the value of the calculation for Windward’s Second Payment in Section 12.3(d)(4)(b) is a negative number, then BAT shall reimburse Windward the positive value of that amount (the “Interim BAT Rebate”).

(e)

At Termination of this Agreement, the Settling Parties shall calculate whether Windward shall make Windward’s Final Payment to BAT or receive the Final BAT Rebate from BAT (“Windward’s Final True-Up”).  Windward’s Final True-Up shall be calculated as follows:    

(1)

The Windward Floor shall be increased by the Final Floor Uplift, if any, calculated in accordance with the formula below in Section 12.3(e)(3).    

(2)

There shall be a Final Floor Uplift that shall be equal to the positive difference between $25 million and the True-Up Value, such difference being the “Final Windward Growth.”  The “True-Up Value” shall be equal to the sum of the value of Windward’s net assets as of the Final Measuring Date (“Final Measuring Date

Value”) plus Windward’s Initial Payment,  plus Windward’s Second Payment (whether the value of Windward’s Second Payment is positive or negative). 

(3)

The Final Floor Uplift shall be the total of the following:

(4)

Windward’s Final True-Up shall equal the lesser of (a) the sum of Excess Liability plus Second Excess Liability plus Further Excess Liability less Windward’s Initial Payment or (b) the difference calculated by subtracting (i) the sum of the Windward Floor, the Final Floor Uplift, Windward’s Initial Payment plus Windward’s Second Payment (whether the value of Windward’s Second Payment is positive or negative) from (ii) the True-Up Value.

(5)

For clarity, if expressed as a mathematical formula, Section 12.3(e)(4)(b) shall mean as follows: 

(6)

If the value of the calculation in Section 12.3(e)(4)(b), is a positive number, then Windward shall pay BAT that amount (“Windward’s Final Payment”).

(7)

If the value of the calculation in Section 12.3(e)(4)(b), is a negative number, then BAT shall reimburse Windward the positive value of that amount (the “Final BAT Rebate”).