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5.3 If the Company and Related Member Parties fail to maintain at least ninety percent(90%)of the
<br /> number of New Jobs in place at Closeout for the required time period following Closeout,as
<br /> specified in Paragraphs 5.1 and 5.2,the Company will be in default of this CPA and shall
<br /> reimburse to DOC the total amount of the Grant funds previously disbursed in accordance with
<br /> this CPA.
<br /> 6.0 ADDITIONAL PROVISIONS
<br /> 6.1 The Company and Related Member Parties shall provide to DOC and the Local Government all
<br /> documentation deemed necessary by DOC or the Local Government to verify Retained Jobs, and
<br /> creation and retention of New Jobs, salary levels, health insurance, investments, Statutorily
<br /> Qualifying Expenses,environmental permits and other Performance Criteria specified in this CPA,
<br /> including copies of N.C. Employment Security Commission ("ESC") worksite forms ("NCUI
<br /> 101")described in the Program Guidelines, a list of all positions used in accounting for the Grant
<br /> and the names of the individuals filling those positions. The threshold numbers of New Jobs
<br /> created for the Company to be eligible for disbursements under paragraph 2.1, shall be measured
<br /> by adding the three figures that represent the average number of New Jobs (calculated after
<br /> deducting the Retained Jobs ) that have been created during the Grant Period and have been
<br /> retained during each of the three months of the quarter reported in the Company's and/or Related
<br /> Member Parties' NCUI 101, and dividing that sum by three, or in such other manner determined
<br /> by the DOC to reasonably reflect New Job creation. The Company and Related Member
<br /> Parties shall not include in such count, any temporary, seasonal, contract, or part-time
<br /> employees, employees that were hired prior to the Effective Date or employees that were
<br /> hired from affiliates of the Company in North Carolina,even if those employees are included
<br /> in their NCUI 101s. The Company and Related Member Parties shall each certify how
<br /> many of the employees listed on their NCUI 101s,respectively,in each month qualify under
<br /> the definition of Retained Jobs and New Jobs. The Company's and Related Member
<br /> Parties' compliance with the job creation and/or retention, investment, Statutorily
<br /> Qualifying Expense, environmental permit and other Performance Criteria set out in this
<br /> CPA shall be attested to under oath by an officer of each of the Company and Related
<br /> Member Parties.
<br /> 6.2 If unforeseen calamity, an Act of God, or financial disaster is the cause of the Company's failure
<br /> to satisfy or perform its obligations under this CPA,the Company and the Local Government may
<br /> request an extraordinary modification of this CPA from the Secretary of DOC (the "Secretary").
<br /> The Parties agree that any decision to allow such modification shall be at the sole discretion of the
<br /> Secretary and that the Secretary's decision regarding any extraordinary modification shall be final
<br /> and not subject to review or appeal.
<br /> 6.3 The Company and Related Member Parties shall keep and maintain books, records, and other
<br /> documents relating to the receipt and disbursement of the Grant and fulfillment of this CPA,
<br /> including, but not limited to, records to verify employment, salaries, health insurance, investment
<br /> amounts,Statutorily Qualifying Expenses and environmental permits.
<br /> Subject to any applicable federal or North Carolina laws or regulations respecting employee
<br /> privacy, the Company and Related Member Parties agree that any duly authorized representative
<br /> of the Local Government or the State of North Carolina, including the DOC, the Office of the
<br /> North Carolina State Auditor, and the Office of State Budget and Management, shall, at all
<br /> reasonable times and on reasonable notice,have access to and the right to inspect,copy,audit, and
<br /> One NC Company Performance Agreement
<br /> AKG North America, Inc.
<br /> Orange County
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