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HomeMy WebLinkAbout2011-250 ED - AKG North America, Inc. - One NC Grant - Performance Agreement North Carolina Department of Commerce Commerce Finance Center Beverly Perdue, Governor Stewart Dickinson,Director Keith Crisco,Secretary July 19, 2011 Mr. Gary Shope Orange County Economic Development Post Office Box 1177, 131 W. Margaret Lane Hillsborough, NC 27278 SUBJECT: One NC Fund Grant—Project No. 0-2011-7604 Local Government Grant Agreement&Company Performance Agreement County of Orange/AKG North America, Inc. Dear Mr.White: A copy of the Terms of the One NC Grant,two copies of the Local Government Grant Agreement and two copies of the Company Performance Agreement for the above project are enclosed. The Local Government Grant Agreement and Company Performance Agreement need to be signed and one original copy of each returned to the Commerce Finance Center. Once we receive original signed copies,the Commerce Finance Center will forward a copy of each signed agreement to the Company. Please be aware that before funds can be disbursed to the recipient all requirements as stated in the Company Performance Agreement must be met. I have enclosed a copy of the Certification form that you will need to complete and send to us at the time a disbursement of the grant is sought. For your information, I have also enclosed a copy of the Company's disbursement request form that they will submit to you when funds are being sought. The grant is subject to the requirement that the Local Government deliver to the Department of Commerce a copy of the agreement with the company governing the local incentives to be provided for the Project. Please submit along with your signed Company Performance Agreement and Local Government Grant Agreement a copy of your Local Government Incentive Agreement with AKG North America, Inc. Should you have questions regarding the grant funding process please call me.at 919/733-0886 or email mmjohnson@nccommerce.com. Sincerely, 'Mary WJo nson Enclosures North Carolina 301 North Wilmington Street•4318 Mail Service Center•Raleigh,North Carolina 27699-4318 Tel:(919)733-5297•Fax:(919)715-5297 An Equal Opportunity/Affirmative Action Employer Terms of One NC Grant Local Government: Orange County Project Company: AKG North America, Inc. Grant Amount: $loo,000 Related Member Parties(3) AKG North American Operations, Inc. AKG of America, Inc. AKG Thermal Systems, Inc. Project Description A manufacturing plant at which the company will manufacture heat exchanger and cooling solutions Facility Location Mebane, Orange County, North Carolina Grant Period June 15, 2011 through June 15, 2014 Grant End Date June 15, 2014 Target New Jobs (goal) 76 Target New Investment (goal) $3,300,000 Required New Jobs (required for full grant) 68 Required New Investment (required for full $2,970,000 rant) Average weekly wage for all full-time jobs $739.00 (Wage Standard) Retained Jobs, if any 273 permanent full time jobs and 38 temporary full time jobs Closeout The earlier of when performance is complete, or the Grant End Date Other Requirements • Health insurance for all fulltime jobs • Use grant proceeds for installation or purchase of equipment; structural repairs, improvements, or renovations to existing buildings to be used for expansion; construction of or improvements to new or existing water, sewer, gas or electric utility distribution lines or equipment for existing buildings, or for new or proposed buildings to be used for manufacturing and industrial operations • Must provide verification that Project has received all environmental permits • The grant is subject to the requirement that the Local Government deliver to the Department of Commerce a copy of the agreement with the Company governing the local incentives to be provided for the Project. Disbursement of Grant 4 installments equal to 25% of grant each, on demonstration of creation of: • 25% of Target New Jobs; • 50% of Target New Jobs • 75% of Target New Jobs • Required New Jobs and Required Investment and evidence of making Statutorily Qualifying Expenditures, Environmental Permits, and Retained Jobs (if required, as set forth above). Obligation to Repay Grant • Failure to provide required health insurance • Failure to achieve Wage Standard • Ceasing project operations • Failure to maintain jobs for the requisite time beyond Closeout(1-2 years depending on Closeout timing) Adjustments to Grant At Closeout • If Closeout occurs on the date three years from the date of the Grant award and the Company has failed to: o Create and retain Required New Jobs, or o Make statutorily qualifying expenses equal to 100% of the grant, or o Make the Required Investment the amount of the Grant will be reduced on a pro rata basis to reflect the percentage by which the Company failed to meet its performance goals. To the extent the amount of the reduced Grant is less than the amount that has been previously disbursed,the Company must reimburse DOC for the difference. Obligations Beyond Closeout • If Closeout occurs more than one year prior to the Grant End Date, the Company must maintain at least 90% of the New Jobs in place at Closeout for two years after the date of Closeout. • If Closeout occurs less than one year prior to the Grant End Date, the Company must maintain at least 90% of the New Jobs in place at Closeout until the one anniversary of the Grant End Date. • If the Company fails to maintain at least 90% of the number of New Jobs in place at Closeout for the required time period, the Company must reimburse DOC the entire amount of the Grant. Statute and Guidelines Governing Grant • N.C. Gen. Stat. 143B-437.70 et seq. • Guidelines And Procedures for Commitment of Funds from the One North Carolina Fund. LOCAL GOVERNMENT GRANT AGREEMENT THE ONE NORTH CAROLINA FUND Local Government Name: Orange County Grant No. 2011-7604 Project Name: AKG North America, Inc. (with AKG North American Operations,Inc.,AKG of America,Inc. and AKG Thermal Systems, Inc. as Related Members) STATE OF NORTH CAROLINA GRANT AGREEMENT COUNTY OF WAKE This Local Government Grant Agreement(the"LGGA")is effective the 15''day of June,2011 (the"Effective Date")by and between the County/City of Orange,North Carolina(hereinafter referred to as the"Local Government'),and the North Carolina Department of Commerce(hereinafter referred to as "DOC"); WITNESSETH: WHEREAS;the Local Government desires to stimulate and develop the local economy of its region,alleviate the problems of unemployment and underemployment by creating and/or retaining jobs for its citizens,and develop its local tax base;and WHEREAS;the General Assembly has created the One North Carolina Fund(the"Program")to make funding available within North Carolina"to secure commitments for the recruitment,expansion or retention of new or existing businesses";and WHEREAS;the General Assembly has authorized Program funds to be used for installation or purchase of equipment;structural repairs,improvements,or renovations to existing buildings to be used for expansion;construction of or improvements to new or existing water,sewer,gas or electric utility distribution lines or equipment for existing buildings;and construction of or improvements to new or existing water,sewer,gas or electric utility distribution lines or equipment for new or proposed buildings to be used for manufacturing and industrial operations;and WHEREAS;the Local Government has applied for funds in connection with activity to be undertaken by AKG North America,Inc. (the"Company"),a business that has competitively chosen to locate or expand operations for the following project(the"Project')in North Carolina: A manufacturing plant(the"Facility")at which the company will manufacture heat exchanger and cooling solutions in or around the town of Mebane in Orange County,North Carolina. 1 WHEREAS; the Local Government has committed to provide matching funds and resources for the Project equal to at least the amount of any funds awarded from the Program(the"Match");and WHEREAS; the Local Government's application(the"Local Government Application")has been approved by DOC for funding,based on the Local Government's commitments,and the commitments made by the Company in its Program application(the"Company Application"); WHEREAS,the Company has executed an agreement(the"Company Performance r Agreement"or"CPA")with the Local Government reflecting the Company's commitments to expand, create and/or retain jobs and to take other actions that will support North Carolina's economic development,and the terms on which funds will be made available for such activity from the Program; NOW THEREFORE,in consideration of the mutual covenants and promises set forth below, the Local Government and DOC hereby agree as follows: I. DOC COMMITMENTS AND GRANT CONDITIONS (a) DOC agrees to provide Program fund in the maximum amount of One Hundred Thousand Dollars($100,000)for the Project(the"Grant"),in accordance with the terms of this LGGA and the CPA. (b) Grant payments disbursed under this LGGA will be disbursed to the Local Government pursuant to N.C.Gen. Stat. § 14313-437.70 et seq., the terms of the Program Guidelines and Procedures for - Commitment of Funds from the One North Carolina Fund,established pursuant to N.C. Gen. Stat. § 14313- 437.73 and in effect as of the effective date of this LGGA(the"Program Guidelines"),consistent with the terms and schedule established in the CPA. (c) Grant disbursements are conditioned upon the execution of the CPA between the Local Government and the Company,and any other required parties thereto,in a form acceptable to DOC. In addition to the Company and the Local Government,the following are required parties to the CPA: AKG North American Operations,Inc.,AKG of America,Inc. and AKG Thermal Systems,Inc. ("Related Member Parties"). (d) To receive a Grant disbursement,the Local Government must provide or cause to be provided to DOC a properly executed CPA,proof that the Company has performed its obligations under the CPA, proof that the Local Government has met its obligation to provide the Match, a duly executed completed disbursement request and certification in the form of Exhibit A hereof(the"Local Government Disbursement Request"),and a duly executed completed Company's disbursement request and certification in the form of Exhibit A to the CPA(the"Company Disbursement Request"). U. LOCAL GOVERNMENT'S COMMITMENTS (a) The Local Government agrees to perform the Program and to abide by all commitments,terms and representations in the Local Government Application. (b) The Local Government agrees to provide the Match in a manner consistent with N.C. Gen. Stat § 14313-437.72(c)(1),the Program Guidelines and Procedures,and the Local Government Application. The Local Government will provide to the DOC a copy of the duly executed agreement between the Local Government(or other local entity)and the Company governing the local incentives that will be provided to the Company for the Project(the"Local Incentive Agreement"),at the time the Local Government returns the executed LGGA. The Company will be ineligible for a Grant disbursement until the Local Incentive Agreement is provided to the DOC. The Local Government will report to the DOC the amount of each incentive payment that is provided to the Company under the Local Incentive Agreement,within thirty(30) days of the date on which it is provided,whether or not the CPA remains in effect. 2 (c) The Local Government agrees to take all steps reasonably necessary to ensure and to establish to DOC that the required levels of jobs are created and/or retained,the required salary levels are achieved, the required levels of investments are made,statutorily qualifying expenses are incurred,any required environmental permits are obtained,and any other required performance criteria are satisfied,and that no Grant funds are disbursed until the performance criteria in the CPA have been met. (d) The Local Government agrees to take whatever steps may be reasonably necessary to ensure and to establish to DOC that Grant funds disbursed by the Local Government are used only for purposes allowed under the statutory authority creating the Program. (e) The Local Government agrees to take whatever steps may reasonably be required,after consultation with the Secretary of DOC(the"Secretary")and not inconsistent with the Secretary's authority under the CPA,to recapture all disbursed funds for which the Local Government and DOC have a right to be reimbursed. (f) The Local Government acknowledges that DOC has a right to recapture funds under the CPA and that such right does not relieve the Local Government of its own responsibility to recapture funds. (g) The Local Government agrees to otherwise reimburse DOC for any funds improperly disbursed, provided,however,that Local Government is under no obligation to reimburse DOC for any improperly disbursed funds that were disbursed with DOC's prior permission. (h) The Local Government agrees to keep and maintain books,records,and other documents relating to the receipt and disbursement of the Grant and the fulfillment of this LGGA.The Local Government shall provide any information DOC requests in order to produce reports or compile data required by the General Assembly. If the Local Government fails to keep and maintain books and records necessary for verifying fulfillment of this LGGA,the Secretary may in his discretion declare this LGGA to be in default,withhold payments for or under this LGGA,and/or require reimbursement of all or any portion of Grant funds previously paid. Prior to taking such action,the Secretary will endeavor to communicate with the Local Government and the Company to discuss the circumstances and the actions being contemplated. (i) The Local Government agrees to provide any duly authorized representative of DOC or the State of North Carolina at all reasonable times access to and the right to inspect,copy,monitor,and examine all of the books,papers,records,and other documents relating to the Grant for a period of three years following the last payment of Grant funds or for the inspection period specified in the CPA, whichever is longer. To the extent any information or documents gathered pursuant to this section would be regarded as confidential or not subject to disclosure under federal law or the North Carolina General Statutes(to include,without limitation,N.C.Gen. Stat. §§ 132-1 et seq., commonly referred to as the "Public Records Act"), the Local Government shall clearly identify and mark them as such and that information will,to the extent allowed by law,be treated as confidential and not subject to disclosure by DOC and its authorized representatives. If the Local Government fails to provide such access and right of inspection,the Secretary may exercise discretion to declare this LGGA in default,to withhold payments under this LGGA and/or require reimbursement of all or any portion of the Grant paid. 0) The Local Government shall comply with all lawful requirements of DOC,all applicable requirements of the General Statutes of the State of North Carolina,and any other applicable laws and/or Executive Orders currently or hereafter in force. (k) In the event that the Company or Related Member Parties fail to fulfill their responsibilities under the Company Application and/or CPA,including their responsibilities to create and/or retain jobs,make investments,and incur statutorily qualifying expenses,the Local Government,after consultation with the Secretary and not inconsistent with the Secretary's authority under the CPA,shall promptly exercise its rights and remedies to require repayment of funds,or to assess such other penalties as may be provided for in the CPA. 3 (1) In addition,in the event that the Company or Related Member Parties fail to fulfill their responsibilities under the Company Application and/or CPA,including their responsibilities to create and/or retain jobs,make investments, and incur statutorily qualifying expenses,and the Local Government recaptures funds from the Company,the Local Government shall promptly pay to DOC the Grant amounts which it is able to collect. III. GENERAL PROVISIONS (a) The parties to this LGGA agree and understand that the payment of all sums specified in this LGGA is dependent and contingent upon and subject to the appropriation,allocation,and availability of funds to DOC for this purpose. (b) Failure of DOC at any time to require performance of any term or provision of this LGGA shall in no manner affect the rights of DOC at a later date to enforce the same or to enforce any future compliance with or performance of any of the terms or provisions hereof. No waiver of DOC of any condition or the breach of any term,provision or representation contained in this LGGA,whether by conduct or otherwise, in anyone or more instances,shall be deemed to be or construed as a further or continuing waiver of any such condition or of the breach of that or any other term,provision or representation. (c) The recitals are an integral part of this LGGA. (d) This LGGA constitutes a legally enforceable contract and shall be governed and construed in accordance with the laws of the State of North Carolina. The parties agree and submit,solely for matters concerning this LGGA,to the exclusive jurisdiction of the courts of North Carolina and agree,solely for such purpose,that the only venue for any legal proceedings shall be Wake County,North Carolina. The place of this LGGA,and all transactions and agreements relating to it,and their situs and forum,shall be Wake County,North Carolina,where all matters,whether sounding in contract or tort,relating to its validity,construction,interpretation,and enforcement,shall be determined. (e)This Grant award shall terminate and be null and void on September 30,2011,if by that date the Local Government has not delivered back to the DOC an original of this LGGA and of the CPA, duly executed by an authorized official of the Local Government,and attested in the manner provided below,together with a copy of the Local Incentive Agreement. Upon execution of this LGGA by DOC and.the Local Government in the spaces below,the Local Government hereby accepts the Grant on the terms of this LGGA,effective on the date indicated above, and further certifies that the official signing below has been duly authorized by the Local Government's governing body to execute this LGGA. North Carolina Department of Commerce Date: r( By: Dale B.Carroll,N.C. eputy Secretary of Commerce Local Government Grant Agreement Signature page follows 4 Local Government Grant Agreement Signature page continued County of Orange(Local Government) Date: l By: V (Official a � Name: Title: Q.V Authorized Official 17 52 Date: CJ 6 t /( I ATTEST: °rte IIA)L�lerk 5 i (vi) to its best knowledge and belief, the Company's Disbursement Request accompanying this certification is accurate, the Company is eligible to receive funds from the Grant in the amount specified herein, under the terms of the CPA, and the Local Government is not aware of anything that would make the Company ineligible for these funds. This certification shall be deemed to be made a part of the LGGA and is incorporated therein, and governed by its terms and conditions. Upon execution of this certification, the Local Government accepts its terms, effective on the date indicated above, and further certifies that the official signing below has been duly authorized to execute this certification by the Local Government's governing body, and the agreements and certifications contained herein are legally valid and binding on the Local Government. Orange County (Local Government) Date: By: (Official Seal) Name: Title: Authorized Official ATTEST: Clerk 2 One NC Local Gov Disbursement Request AKG North America, Inc. Orange County COMPANY PERFORMANCE AGREEMENT THE ONE NORTH CAROLINA FUND STATE OF NORTH CAROLINA COUNTY OF WAKE This Company Performance Agreement (the "CPA"), effective the 15'h day of June, 2011 (the "Effective Date"), by and between AKG North America, Inc., a Delaware C Corporation authorized to do business in North Carolina (the "Company"), AKG North American Operations, Inc., AKG of America, Inc. and AKG Thermal Systems, Inc., Delaware C Corporations authorized to do business in North Carolina (the "Related Member Parties"), and Orange County, North Carolina (the "Local Government,"and,together with the Company and Related Member Parties,the"Parties"); WITNESSETH: WHEREAS,the Local Government has applied for a One North Carolina Fund grant from the North Carolina Department of Commerce(the"DOC");and WHEREAS, a One North Carolina Fund grant award in the amount of One Hundred Thousand Dollars($100,000)(the"Grant")has been negotiated and agreed to by DOC and the Parties;and WHEREAS, the Grant has been approved by DOC for disbursement to the Local Government pursuant to the terms of the One North Carolina Fund Local Government Grant Agreement between the Local Government and the DOC (the"LGGA");and WHEREAS,the Grant is to be used by the Company toward the goal of creating seventy-six(76) new jobs(the "Target New Jobs") which shall be permanent full-time jobs (each, a "New Job"), and Three Million Three Hundred Thousand Dollars ($3,300,000) (the "Target Investment") in new investment in the State of North Carolina(the"State"); and WHEREAS, the Related Member Parties will be responsible for some of the performance required by this CPA and the benefits thereof are defined between the Company and the Related Member Parties;and WHEREAS, the Company has represented that the Grant is necessary to enable the investment and job creation by the Company to occur and go forward in North Carolina;and WHEREAS, the Grant will enable retention of 273 permanent full time jobs and 38 temporary full time jobs (the "Retained Jobs"), which is the number of positions the Company maintained in North Carolina prior to the Effective Date; WHEREAS, the Grant will stimulate economic activity and create new jobs for the citizens of the State of North Carolina;and WHEREAS,the Grant is issued pursuant to and subject to the terms of N.C.Gen. Stat. § 143B-437.70 et seq. and the Guidelines and Procedures for Commitment of Funds from the One North Carolina Fund (the"Program Guidelines"); One NC Company Performance Agreement AKG North America,Inc. Orange County - 1 - NOW, THEREFORE, in consideration of the representations set forth above and the mutual covenants and promises set forth below, the Company, the Related Member Partyies, and the Local Government hereby agree as follows: 1.0 PERFORMANCE CRITERIA 1.1 The Company and Related Member Parties shall make good faith efforts to undertake and operate in a timely manner the following project at the following location(the"Project"): A manufacturing plant(the"Facility")at which the company will manufacture heat exchanger and cooling solutions in or around the town of Mebane in Orange County,North Carolina. All references herein to "Company" shall include the Related Member Parties, and required Performance Criteria such as job creation and investment may be performed by either or both of the Company and Related Member Parties, which both agree to be bound by the obligations set forth herein, in respect thereof, provided however, that all Grant payments shall be made to the Company,as the grantee and sole entity eligible to receive Grant payments. 1.2 The Company shall make good faith efforts to maintain its current operations at its facilities in North Carolina and to maintain a base level of three hundred eleven(311)Retained Jobs in North Carolina in addition to any New Jobs to be created as part of this CPA. 1.3 The Company, together with the Related Member Parties, if applicable, shall make good faith efforts to create and maintain the Target New Jobs as part of the Project, as described in the Company's application to DOC (the"Company Application"). The New Jobs must be filled by employees hired for the project on or after the Effective Date who work for at least thirty-five(35) hours per week, and whose wages are subject to withholding under Article 4A of Chapter 105 of the General Statute. Independent contractors,consultants, seasonal and temporary employees are not to be included as New Jobs. In order to be eligible for the full Grant, the Company must create sixty-eight (68) New Jobs (the "Required New Jobs") (90% of the Target New Jobs), by June 15, 2014 (the "Grant End Date"), which shall be three years from the date on which the Grant was formally awarded) (the period between June 15, 2011 and June 15, 2014, the "Grant Period"). The New Jobs will be new jobs and cannot be existing North Carolina positions or employees of the Company or the Related Member Parties or any of their related members or affiliates that are transferred or shifted such that a previously existing North Carolina job, or a North Carolina job that was not previously part of the Project,is counted towards performance under this CPA. 1.4 The average weekly wage of the group of all permanent full-time jobs at the Facility, including the New Jobs, will equal or exceed Seven Hundred Thirty-Nine Dollars ($739.00) per week (the "Wage Standard"). 1.5 The Company and Related Member Parties shall provide health insurance for all permanent full- time employees at the Facility, including the New Jobs, in at least the minimum amount required for eligibility for tax credits under Article 3J in N.C.Gen. Stat. § 105-129.83(d). 1.6 The Company, together with the Related Member Parties, if applicable, shall make good faith efforts to make the Target Investment in the form of privately funded investment in real property One NC Company Performance Agreement AKG North America,Inc. Orange County -2- and/or machinery and equipment as part of the Project, which will amount to at least Two Million Nine Hundred Seventy Thousand Dollars ($2,970,000) by the Grant End Date (the "Required Investment')(90%of the Target Investment). 1.7 The proceeds of the Grant may be used only to offset statutorily qualifying expenses as set out in N.C. Gen. Stat. § 143B-437.71(b) ("Statutorily Qualifying Expenses"). Those expenses are installation or purchase of equipment; structural repairs, improvements, or renovations to existing buildings to be used for expansion; construction of or improvements to new or existing water, sewer, gas or electric utility distribution lines or equipment for existing buildings or for new or proposed buildings to be used for manufacturing and industrial operations; or such other expenses as specifically provided for by an act of the General Assembly. 1.8 Release of any Grant funds under this CPA is contingent on the Company providing verification that the Project has received all of its required environmental permits. 2.0 DISBURSEMENT OF GRANT 2.1 Proceeds of the Grant up to a total amount of One Hundred Thousand Dollars ($100,000) will be disbursed by DOC to the Local Government in four installments based on creation and maintenance of New Jobs and satisfaction of other performance criteria set out in Section 1.0 above("Performance Criteria"). The number of New Jobs to be counted shall be determined as provided in paragraph 6.1 hereof. At the time of any requested disbursement, the Company and, as applicable, the Related Member Parties, must certify its performance by submitting a duly executed disbursement request and certification in the form of Exhibit A hereto (the "Company Disbursement Request'), and the Local Government must submit a duly executed disbursement request and certification in the form of Exhibit A to the LGGA (the "Local Government Disbursement Request'). Disbursement will occur on the following schedule and will be subject to any adjustments required by this CPA: a. The first twenty-five percent (25%) of the Grant will be disbursed to the Local Government upon proof that the Company and Related Member Parties, if applicable have together(i) maintained 100% of the Retained Jobs; (ii)created and retained not less than twenty-five percent(25%) of the Target New Jobs (i.e., 19 New Jobs), (ii) invested the amount to be disbursed in Statutorily Qualifying Expenses, and (iii) obtained all required environmental permits. , b. The second twenty-five percent (25%) of the Grant will be disbursed to the Local Government upon proof that the Company and Related Member Parties, if applicable have together(i)maintained 100% of the Retained Jobs; (ii)created and retained not less than fifty percent(50%)of the Target New Jobs(i.e., 38 New Jobs), and(ii)invested the amount to be disbursed in Statutorily Qualifying Expenses. c. The third twenty-five percent (25%) of the Grant will be disbursed to the Local Government upon proof that the Company and Related Member Parties, if applicable, have together(i) maintained 100%of the Retained Jobs; (ii)created and retained not less than seventy-five percent (75%) of the Target New Jobs (i.e., 57 New Jobs), and (ii) invested the amount to be disbursed in Statutorily Qualifying Expenses. One NC Company Performance Agreement AKG North America, Inc. Orange County -3- d. The final twenty-five percent (25%) of the Grant will be disbursed to the Local Government upon proof that the Company and Related Member Parties, if applicable, have together (i) maintained 100% of the Retained Jobs; (ii) created and retained the Required New Jobs, (ii) made the Required Investment, and (iii) invested the amount to be disbursed in Statutorily Qualifying Expenses. The Local Government will submit or cause to be submitted to DOC each Company Disbursement Request and Local Government Disbursement Request, with proof of the creation of the required percentage of Target New Jobs and the satisfaction of all other Performance Criteria necessary for disbursement. Following receipt of Grant funds from DOC, the Local Government will disburse funds to the Company. The Company may qualify for disbursement of multiple installments on a single date. Should it become necessary for a job created after the Effective Date to be counted by the Company as a Retained Job for purposes of establishing the base level of jobs required to be maintained by this CPA,that job may not be double-counted as a New Job. 2.2. DOC will close out the Grant on the first to occur of- 0) The date as of which DOC shall have received and accepted proof reasonably satisfactory to it that the Project has been completed and the Performance Criteria satisfied. (ii) The Grant End Date. ("Closeout'). Following Closeout, to the extent any Grant proceeds may be due and upon submission of duly completed Company Disbursement Request and Local Government Disbursement Request, a final Grant payment will be disbursed. A request for final payment, if not made previously, must be made to DOC within 30 days following Closeout. 3.0 OBLIGATION TO REPAY GRANT 3.1 Failure to Provide Health Insurance. If,at any time during the Grant Period or at Closeout,the Company or Related Member Parties fail to provide health insurance to all permanent full-time employees at the Facility in the amount required for eligibility for tax credits under Article 3J in N.C.Gen.Stat. § 105-129.83(d),the Company will be in default of this CPA and will reimburse DOC the total amount of the Grant previously disbursed in accordance with this CPA. 3.2 Ceasing Proiect Operations. If at any time during the Grant Period or during the period set forth in Section 5.0 hereof,the Company substantially ceases operations at the Facility,the Company shall immediate repay all Grant funds previously disbursed in accordance with this CPA. 3.3 Failure to Achieve Wage Standard. If during the Grant Period or at Closeout,the average weekly wage of the group of all permanent full-time jobs at the Facility fails to equal or exceed the Wage Standard,the Company will be in default under this CPA,no disbursement will be made, One NC Company Performance Agreement AKG North America,Inc. Orange County -4- and the Company will reimburse DOC the total amount of the Grant previously disbursed in accordance with this CPA. 3.5 Other Failures to Comply. The Company may be required to reimburse Grant funds previously disbursed for failure to comply with Paragraphs 6.3 and 6.15 hereof. 3.6 Recovery of Costs. If the Company fails to reimburse any amount payable hereunder, on demand, the Local Government and DOC may recover the costs of collection to obtain recovery, from the Company,including reasonable attorneys'fees. 4.0 ADJUSTMENTS TO GRANT AT CLOSEOUT 4.1 If Closeout occurs on the Grant End Date and the Company, together with the Related Member Parties, if applicable, have failed to create and retain the Required New Jobs, has failed to make the Required Investment, or has failed to invest an amount equal to 100% of the Grant in Statutorily Qualifying Expenses, the amount of the Grant shall be reduced to the smallest of the following amounts(the"Adjusted Grant"): a. The amount obtained by multiplying the Grant by a fraction the denominator of which is the Required New Jobs and the numerator of which is the number of New Jobs actually created and retained as of that date,as expressed in the following formula: Adjusted Grant=Original Grant Amount x New Jobs Actually Created and Retained Required New Jobs b. The amount obtained by multiplying the Grant by a fraction the denominator of which is the Required Investment and the numerator of which is the investment actually made as of that date,as expressed in the following formula: Adjusted Grant=Original Grant Amount x Investment Actually Made Required Investment C. The amount the Company has spent on Statutorily Qualifying Expenses 4.2 To the extent the amount of the Adjusted Grant is less than the amount that has been previously disbursed to the Company, the Company shall reimburse DOC for the difference between the Adjusted Grant and the amount previously disbursed. 5.0 OBLIGATIONS BEYOND CLOSEOUT 5.1 If Closeout occurs on or before the date that is exactly one year prior to the Grant End Date,the Company and Related Member Parties will maintain at least ninety percent(90%)of the number of New Jobs in place at Closeout for two(2)years after the date of Closeout. 5.2 If Closeout occurs after the date that is exactly one year prior to the Grant End Date,the Company and Related Member Parties will maintain at least ninety percent(90%)of the number of New Jobs in place at Closeout until the date that is the one year anniversary following the Grant End Date. One NC Company Performance Agreement AKG North America, Inc. Orange County -5- 5.3 If the Company and Related Member Parties fail to maintain at least ninety percent(90%)of the number of New Jobs in place at Closeout for the required time period following Closeout,as specified in Paragraphs 5.1 and 5.2,the Company will be in default of this CPA and shall reimburse to DOC the total amount of the Grant funds previously disbursed in accordance with this CPA. 6.0 ADDITIONAL PROVISIONS 6.1 The Company and Related Member Parties shall provide to DOC and the Local Government all documentation deemed necessary by DOC or the Local Government to verify Retained Jobs, and creation and retention of New Jobs, salary levels, health insurance, investments, Statutorily Qualifying Expenses,environmental permits and other Performance Criteria specified in this CPA, including copies of N.C. Employment Security Commission ("ESC") worksite forms ("NCUI 101")described in the Program Guidelines, a list of all positions used in accounting for the Grant and the names of the individuals filling those positions. The threshold numbers of New Jobs created for the Company to be eligible for disbursements under paragraph 2.1, shall be measured by adding the three figures that represent the average number of New Jobs (calculated after deducting the Retained Jobs ) that have been created during the Grant Period and have been retained during each of the three months of the quarter reported in the Company's and/or Related Member Parties' NCUI 101, and dividing that sum by three, or in such other manner determined by the DOC to reasonably reflect New Job creation. The Company and Related Member Parties shall not include in such count, any temporary, seasonal, contract, or part-time employees, employees that were hired prior to the Effective Date or employees that were hired from affiliates of the Company in North Carolina,even if those employees are included in their NCUI 101s. The Company and Related Member Parties shall each certify how many of the employees listed on their NCUI 101s,respectively,in each month qualify under the definition of Retained Jobs and New Jobs. The Company's and Related Member Parties' compliance with the job creation and/or retention, investment, Statutorily Qualifying Expense, environmental permit and other Performance Criteria set out in this CPA shall be attested to under oath by an officer of each of the Company and Related Member Parties. 6.2 If unforeseen calamity, an Act of God, or financial disaster is the cause of the Company's failure to satisfy or perform its obligations under this CPA,the Company and the Local Government may request an extraordinary modification of this CPA from the Secretary of DOC (the "Secretary"). The Parties agree that any decision to allow such modification shall be at the sole discretion of the Secretary and that the Secretary's decision regarding any extraordinary modification shall be final and not subject to review or appeal. 6.3 The Company and Related Member Parties shall keep and maintain books, records, and other documents relating to the receipt and disbursement of the Grant and fulfillment of this CPA, including, but not limited to, records to verify employment, salaries, health insurance, investment amounts,Statutorily Qualifying Expenses and environmental permits. Subject to any applicable federal or North Carolina laws or regulations respecting employee privacy, the Company and Related Member Parties agree that any duly authorized representative of the Local Government or the State of North Carolina, including the DOC, the Office of the North Carolina State Auditor, and the Office of State Budget and Management, shall, at all reasonable times and on reasonable notice,have access to and the right to inspect,copy,audit, and One NC Company Performance Agreement AKG North America, Inc. Orange County -6- examine all of the relevant books, records, and other documents relating to the Grant and the fulfillment of this CPA throughout the Grant Period and for a period of six years thereafter. If the Company or Related Member Parties fail to keep and maintain books and records necessary for verifying fulfillment of this CPA, including, but not limited to, adequate records for the verification of employment, salaries, investment amounts, Statutorily Qualifying Expenses and environmental permits, or if the Company or Related Member Parties fail to provide access and right of inspection sufficient to verify compliance with this CPA, the Local Government or the Secretary may in its or his discretion declare this CPA to be in default, withhold payments for or under this CPA or the LGGA, and/or require reimbursement of all or any portion of the Grant previously paid. The Company and Related Members shall provide any information DOC requests in order to produce reports or compile data required by the General Assembly. 6.4 To the extent any information or documents gathered by or provided to the Local Government or the DOC would be regarded as confidential or not subject to disclosure under federal law or the North Carolina General Statutes (including, without limitation, N.C. Gen. Stat. §§ 132-1 et seq., commonly referred to as the "Public Records Act"), the Company or Related Member Parties, as applicable, shall clearly identify and mark them as such and that information will, to the extent allowed by law, be treated as confidential and not subject to disclosure by the Local Government and DOC and their authorized representatives. The Company and Related Member Parties have read and understand North Carolina's laws regarding the treatment of public records and confidential information, including without limitation,those provisions set forth in Exhibit B. The Company and Related Member Parties shall be responsible for any and all costs,expenses, fees,or losses that they or the Local Government or DOC or any other State entity may incur as a result of responding to or resisting any request,subpoena,legal complaint,court order,or other demand seeking to compel such party to release or disclose records,documents,or information pertaining to the Company or Related Member Parties,to the extent that the Company or Related Member Parties notified the State entity that it objects to such disclosure or release and the State defends against such release;and the Company and Related Member Parties shall indemnify the Local Government,DOC,and State entities and their authorized representatives for all costs associated therewith,provided that,no such indemnified party shall be obligated to take any such action. 6.5 Notwithstanding anything herein to the contrary, the Parties acknowledge the due execution of the LGGA and agree that any conflict between the provisions, requirements, duties, or obligations of this CPA and the LGGA shall be resolved in favor of the LGGA. The Parties further agree that any conflict between the provisions, requirements, duties, or obligations of this CPA and any program documentation for this Grant other than the LGGA shall be resolved in favor of this CPA. 6.6 The Company and Related Member Parties acknowledge that none of the North Carolina operations owned by the Company or a related entity or affiliate shall be curtailed as a result of the Project. 6.7 The Company and Related Member Parties shall perform and abide by all commitments identified in the Company Application, except as otherwise expressly stated herein. The Company and One NC Company Performance Agreement AKG North America,Inc. Orange County -7- Related Member Parties affirm their commitments made in the Company Application, and the commitments contained therein are incorporated herein by reference, as if set out in full. The Parties agree that any conflict between the provisions of this CPA and any commitments made in the Company Application to DOC shall be resolved in favor of this CPA. 6.8 The Company indemnifies and holds harmless the Local Government,DOC, and State entities, and their respective members, officers, directors, employees, agents and attorneys (hereinafter collectively referred to as "Indemnified Parties"), from any claims of third parties arising out of or any act or omission of the Company in connection with the performance of this CPA, and for all losses arising from implementation.of this CPA. Without limiting the generality of the foregoing, the Company releases the Indemnified Parties from, and agree that such Indemnified Parties are not liable for, and agree to indemnify and hold harmless the Indemnified Parties against, any and all liability or loss,cost or expense,including, without limitation,reasonable attorneys' fees,fines, penalties, and civil judgments,resulting from or arising out of or in connection with or pertaining to, any loss or damage to property or any injury to or death of any person occurring in connection with or on or about the Facility, or resulting from any defect in the fixtures, machinery, equipment, or other property used in connection with the Project or arising out of,pertaining to, or having any connection with,the Project or the financing thereof(whether or not arising out of acts, omissions, or negligence of the Company or any of their agents,contractors, servants, employees, licensees, lessees, or assignees). Each Indemnified Party is an express, third party beneficiary of the Company's and Related Member Parties' obligations under this Paragraph. 6.9 The representations made by the Company and Related Member Parties in the Company Application to DOC or as part of the application process are incorporated herein by reference and deemed by the Parties to be material to this CPA. The Company and Related Member Parties affirm these representations. The Parties agree that any conflict between any representations contained in this CPA and those representations contained in the Company Application to DOC or made as part of the One North Carolina Fund application process shall be resolved in favor of this CPA. 6.10 The recitals are an integral part of this CPA. 6.11 If the Company or Related Member Parties have an overdue tax debt owing to the State of North Carolina, as defined in N.C. Gen. Stat. § 105-243.1, no payments will be made under this CPA or the LGGA until that tax debt has been satisfied. If an overdue tax debt goes unsatisfied by the Company or Related Member Parties, as applicable, for more than one year, this CPA may be declared in default and terminated at the direction.of DOC. 6.12 The Local Government's obligation to make disbursements to the Company under this CPA is contingent upon the Local Government's receipt under the LGGA of the necessary disbursements from DOC, which are, in turn,contingent on appropriation, allocation and availability of funds for the Grant to DOC. 6.13 This CPA constitutes a legally enforceable contract and shall be governed and construed in accordance with the laws of the State of North Carolina. The Parties agree and submit, solely for matters concerning this CPA, to the exclusive jurisdiction of the courts of North Carolina and agree, solely for such purpose, that the only venue for any legal proceedings shall be Wake County,North Carolina. The place of this CPA, and all transactions and agreements relating to it, and their situs and forum, shall be Wake County, North Carolina, where all matters, whether One NC Company Performance Agreement AKG North America,Inc. Orange County -8- sounding in contract or tort, relating to its validity, construction, interpretation, and enforcement, shall be determined. 6.14 The Parties agree that the State of North Carolina Department of Commerce is a third party beneficiary of this CPA and may, at its option, enforce the terms of this CPA or appear as a party in any litigation concerning it. 6.15 The Company and Related Member Parties shall comply with all applicable federal, state, and local laws and regulations. If the Company or Related Member Parties fail to comply with any law or regulation applicable to it,the Secretary may,in his sole discretion,terminate the Grant and declare that no future Grant disbursement shall be due and payable and/or require the Company to reimburse DOC all or part of any Grant funds previously disbursed following the date of any such violation. The Secretary may determine,in his sole discretion,that where the Company or Related Member Parties is under investigation for an act involving violation of federal, state, local law or regulation, Grant funds be withheld until such time as a determination of culpability or liability is made,and,if the Company or Related Member Parties are determined to be in violation,the Grant may be terminated and the Company may be required to reimburse the DOC for all or part of any Grant funds previously disbursed. If such investigation is not concluded within two (2) years of the Grant End Date,the DOC may terminate the Grant. 6.16 Failure of the Local Government or DOC at any time to require performance of any term or provision of this CPA shall in no manner affect the rights of the Local Government or DOC at a later date to enforce the same or to enforce any future compliance with or performance of any of the terms or provisions hereof. No waiver of the Local Government or DOC of any condition or the breach of any term,provision or representation contained in this CPA, whether by conduct or otherwise, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such condition or of the breach of that or any other term, provision or representation. 6.17 The Company and Related Member Parties are encouraged to utilize the services of North Carolina small businesses and minority, female, and disabled contractors, to offer positions in connection with the Project to North Carolina residents, and to use the North Carolina state ports when reasonable and commercially practicable. 6.18 This Grant award shall terminate and be null and void on August 31 2011 if by that date the Companv has not delivered back to the DOC, two originals of this CPA, duly executed by an authorized officer of each of the Company and Related Member Party,and attested in the manner provided below. This Grant is also subiect to the requirement that the Local Government deliver to the DOC one original each of the LGGA and this CPA duly executed by an authorized official of the Local Government within sixty (60) calendar days following the date on which the DOC sends the LGGA and CPA to the Local Government together with a copy of the agreement with the Company governing the local incentives to be provided for the Proiect. Company Performance Agreement Signature pages follow One NC Company Performance Agreement AKG North America,Inc. Orange County -9- Company Performance Agreement Signature pages continued IN WITNESS WHEREOF,the Company,the Related Member Parties,and the Local Government have executed this Company Performance Agreement,effective as of the day and year first written above. This CPA is executed under seal for purposes of any statute of limitations. Approved and Accepte County of Orange !mss (Local Government) P—e��L? 52 By: (Offi 'al ea ' Name: � SS t °e, fi$ Title: &ti" •� u-v-t Date: ATTES Clerk Company Performance Agreement Signature pages follow One NC Company Per Agreement AKG North America,Inc. Orange County I I - 10- i • Company Performance Agreement Signature pages continued. AKG North America,Inc. (Company) Bv- (Corporate Seal) Name: Gf/ Title: Authorized Corporate Officer Date: AT ST: Secretary STATE OF NOrU Mnl,nee COUNTY OF A1QMQt\C.� I,P1_11t�'L{�2 M•PkiN"�a Notary Public of said State and County,do hereby certify that G (the"principal")personally appeared before me this day,and/or(i)I have personal knowledge of the identity of the principal,and/or(ii)I have seen satisfactory evidence of the principal's identity,by current State or Federal identification with the principal's photograph,and such principal acknowledged to me that he or she voluntarily signed the foregoing document for the purpose therein and in the capacity indicated. -j ax\,M�-&V��V Notary Pulllic Signature p►�{lt �``--fit --yyam�,, Notary Printed or Typed Name Witness my hand and official seal or stamp,this day of—A U\\,20-_ (Official Seal or Stamp) My Commission expires on S ,201 ANNEiTE M ARMAND Notary Public, North Carolina Alamance County My Commission Expires June 02 2013 Company Performance Agreement Signature pages follow One NC Company Performance Agreement AKG North America, Inc. Orange County - 11 - Company Performance Agreement Signature pages continued AKG North American Operations,Inc. (Related Member Party) By: (Corporate Seal) Name: / 4*2� Title: 0e1+0-a Authorized Corporate Officer Date: -711ZIII ATTEST: acretary STATE OF NO A),\Q&T-o\i nq COUNTY OF A\0.rr\At�C 2. RCt�ad,a Notary Public of said State and County,do hereby certify that M0.X�ori�1�0.n AfrQg- (the"principal")personally appeared before me this day,and/or(i)I have personal knowledge of the identity of the principal,and/or(ii)I have seen satisfactory evidence of the principal's identity,by current State or Federal identification with the principal's photograph,and such principal acknowledged to me that he or she voluntarily signe the foregoing document for the purpose therein and in the capacity indicated. tary Public Signatur T�(1(\eA_ ACwa Notary Printed or Typed Name Witness my hand and official seal or stamp,this kt day of 3 U�,201 (Official Seal or Stamp) My Commission expires onSt,d,{Y`R_ .20\3 ANNETTE M ARMAND Notary Public, North Carolina Alamance County My Commission Expires June 02, 2013 Company Performance Agreement Signature pages follow One NC Company Performance Agreement AKG North America, Inc. Orange County - 12- Company Performance Agreement Signature pages continued AKG of America,Inc. (Related Member Party) By: (Corporate Seal) Name: Title: , Authorized Corporate Officer Date: AT ST: ,Secretary STATE OF MOVYN k COUNTY OF A\AWxQ(1C_ I,A11C1eAAe_H 'Aq�Y"a Notary Public of said State and County,do hereby certify that _G•Z,C\,t.1 -{-e_ (the"principal")personally appeared before me this day,and/or(i)I have personal knowledge of the identity of the principal,and/or(ii)I have seen satisfactory evidence of the principal's identity,by current State or Federal identification with the principal's photograph,and such principal acknowledged to me that he or she voluntarily signed the foregoing document for the purpose therein and in the capacity indicated. Notary Public Si natur Notary Printed or Typed Name Witness my hand and official seal or stamp,this� ay of�'20 (Official Seal or Stamp) My Commission expires on 7 �Ik . ,20A.'�, ANNETTE M ARMAND Notary Public, North Carolina Alamance County My Commission Expires June 02, 2013 Company Performance Agreement Signature page follows One NC Company Performance Agreement AKG North America,Inc. Orange County - 13 Company Performance Agreement Signature page continued AKG Thermal Systems,Inc. (Related Member Party) r By: (Corporate Seal) Name: Title: Authorized Corporate Officer ATTE Secretary STATE OF 1JQ<AX,\Qft!Z- k%nC, COUNTY OF'(a&( naa nC2 I,X'ACXt\,o M. AcMAt�a Notary Public of said State and County,do hereby certify that GC W - (the"principal')personally appeared before me this day,and/or(i)I have personal knowledge of the identity of the principal,and/or(ii)I have seen satisfactory evidence of the principal's identity,by current State or Federal identification with the principal's photograph,and such principal acknowledged to me that he or she voluntarily signed the foregoing document for the purpose therein and in the capacity indicated. n otary Public Signature�0re�M- R � `^fin Notary Printed or Typed Name Witness my hand and official seal or stamp,this day ot::� ,20A (Official Seal or Stamp) My Commission expires on TU N\Q_ ,20J3 One NC Company Performance Agreement AKG North America,Inc. Orange County - 14- EXHIBIT A TO COMPANY PERFORMANCE AGREEMENT COMPANY DISBURSEMENT REQUEST AND CERTIFICATION Project No. 2011-7604 AKG North America,Inc. (the "Company") hereby requests that a disbursement in the amount of [spell out dollar amount] ($ )be made by the North Carolina Department of Commerce (the "DOC") to Orange County(the "Local Government"), pursuant to that certain Company Performance Agreement between the Company, AKG North American Operations,Inc.,AKG of America,Inc. and AKG Thermal Systems,Inc. (the "Related Members"), and the Local Government, dated as of June 15, 2011 (the "CPA") and that certain Local Government Grant Agreement between the Local Government and the DOC, dated as of June 15, 2011 (the "LGGA," and, together with the CPA,the "Agreements"). All capitalized terms not otherwise defined herein have the meaning ascribed to them in the Agreements. The Company hereby certifies that: (i) attached hereto is a true and correct copy of the Company's latest NCUI 101 form (or Multiple Worksite Report Form 3020, if applicable) filed with the State; and a copy of the NCUI 101 form(or Form 3020) filed with the State prior to the expansion; (ii) it has retained permanent full time jobs and temporary full time jobs; (iii) it has created and retained New Jobs,' which are net new positions for the Company's operations in the state, and no New Job (or employee)has been transferred from any existing North Carolina operations of the Company or any of its affiliates; (iv) it has obtained all required environmental permits for the Project; ' This is determined by obtaining the average number of new employees over the quarter reported. The company should add the three figures that represent NEW JOBS ONLY during each of the three months of the quarter reported in the NCUI 101,and divide that number by three. DO NOT INCLUDE PART-TIME, TEMPORARY OR SEASONAL JOBS, OR JOBS THAT EXISTED PRIOR TO THE GRANT AWARD. BE PREPARED TO SUPPORT THIS NUMBER WITH ADDITIONAL DOCUMENTATION, INCLUDING IDENTIFICATION OF INDIVIDUAL FULL-TIME EMPLOYEES AND THEIR WAGES. 1 One NC Company Disbursement Request AKG North America,Inc. Orange County (v) it makes available health insurance to all permanent full-time employees at the Facility in the amount required for eligibility for tax credits under the Article 3J (House Bill 2170 § 105-129.83); (vi) attached hereto is a true and correct copy of the Company's fixed asset report showing a description, acquisition date and cost for each asset acquired, disposed of, or transferred from the date of the Grant; (vii) it has made some or all of the Target Investment in the amount of (viii) the proceeds of this disbursement shall be used only to offset statutorily qualifying expenses as set out in N.C. Gen. Stat. § 143B-437.71(b) which have already been incurred by the company in the form of and evidence of such expenditures is attached; (ix) the average weekly wage of all employees in New Jobs, is $ ;2 (x) it is in compliance with all of the terms and conditions of the CPA and affirms the representations, warranties and covenants contained therein; (xi) by not later than March 1 of each year following Closeout, for so long as the Company is required to retain jobs under the terms of the CPA, it shall submit to the DOC an annual report detailing Retained Jobs and New Jobs existing at the Company on December 31 of the year just ended; (xii) it understands that if any of the certifications provided herein prove to be false or misleading in any respect, it shall reimburse the DOC in the amount of this disbursement, and the DOC may pursue such other legal action as it deems appropriate; (xiii) it has received [specify amount] from the Local Government in the form of , representing the Local Government's Match required for this disbursement, under the Agreements; and (xiv) it is not liable for any Overdue Tax Debt, as defined in N.C. Gen. Stat. §105- 243.1 (a tax debt that remains unpaid 90 days or more after final assessment notice is sent). 2 This is determined by dividing the gross wages paid during the quarter to employees in New Jobs,by the average number of full-time jobs (see footnote 1) and then converting that number to a per week average,which must equal or exceed the wage standard,if any,set in the CPA. 2 One NC Company Disbursement Request AKG North America, Inc. Orange County (xv) there is no fact or circumstance or interest about which the Company has knowledge that would conflict in any manner or degree with the performance of its obligations under the CPA. The Company represents, warrants, and certifies the truth and accuracy of the statements made herein. These certifications shall be deemed to be made a part of the CPA and are incorporated therein, and governed by its terms and conditions. AKG North America,Inc. (Company) By: Print Name: Title: (Corporate Seal) Authorized Corporate Officer Date: ATTEST: Secretary 3 One NC Company Disbursement Request AKG North America,Inc. Orange County Related Member Party's Certification The Related Member Party represents, warrants, and certifies the truth and accuracy of the statements made below. These certifications shall be deemed to be made a part of the CPA and are incorporated therein, and governed by its terms and conditions. (i) attached hereto is a true and correct copy of the Related Member Party's latest NCUI 101 form(or Multiple Worksite Report Form 3020, if applicable) filed with the State; and a copy of the NCUI 101 form(or Form 3020) filed with the State prior to the expansion; (ii) it has retained permanent full time jobs and temporary full time jobs; (iii) it has created and retained New Jobs,3 which are net new positions for the Related Member Party's operations in the state, and no New Job (or employee)has been transferred from any existing North Carolina operations of the Company, the Related Member Party, or any of their affiliates; (iv) it has obtained all required environmental permits for the Project (Company should cross out if Related Member Party does not have responsibility for environmental permitting); (v) it makes available health insurance to all of its permanent full-time employees at the Facility in the amount required for eligibility for tax credits under the Article 3J (House Bill 2170 § 105-129.83); (vi) attached hereto is a true and correct copy of the Related Member Party's fixed asset report showing a description, acquisition date and cost for each asset acquired, disposed of, or transferred from the date of the Grant(Company should cross out if Related Member Party's investment is not applicable to this Grant); (vii) it has made some or all of the Target Investment in the amount of (Company should cross out if Related Member Party is not making Required Investment) 3 This is determined by obtaining the average number of new employees over the quarter reported. The company should add the three figures that represent NEW JOBS ONLY during each of the three months of the quarter reported in the NCUI 101,and divide that number by three. DO NOT INCLUDE PART-TIME, TEMPORARY OR SEASONAL JOBS, OR JOBS THAT EXISTED PRIOR TO THE GRANT AWARD. BE PREPARED TO SUPPORT THIS NUMBER WITH ADDITIONAL DOCUMENTATION, INCLUDING IDENTIFICATION OF INDIVIDUAL FULL-TIME EMPLOYEES AND THEIR WAGES. 4 One NC Company Disbursement Request AKG North America,Inc. Orange County (viii) the average weekly wage of all of its employees in New Jobs, is $ 4 f (ix) it is in compliance with all of the terms and conditions of the CPA and affirms the representations, warranties and covenants contained therein; (x) by not later than March 1 of each year following Closeout, for so long as the Company is required to retain jobs under the terms of the CPA, it shall submit to the DOC an annual report detailing Retained Jobs and New Jobs existing at the Related Member Party on December 31 of the year just ended; (xi) it understands that if any of the certifications provided herein prove to be false or misleading in any respect, it shall reimburse the DOC in the amount of this disbursement; and the DOC may pursue such other legal action as it deems appropriate; (xii) it is not liable for any Overdue Tax Debt, as defined in N.C. Gen. Stat. §105- 243.1 (a tax debt that remains unpaid 90 days or more after final assessment notice is sent); (xiii) there is no fact or circumstance or interest about which the Company has knowledge that would conflict in any manner or degree with the performance of its obligations under the CPA. AKG North American Operations,Inc. (Related Member Party) By: Print Name: Title: (Corporate Seal) Authorized Corporate Officer Date: ATTEST: Secretary 4 This is determined by dividing the gross wages paid during the quarter to employees in New Jobs,by the average number of full-time jobs (see footnote 1) and then converting that number to a per week average,which must equal or exceed the wage standard,if any,set in the CPA. 5 One NC Company Disbursement Request AKG North America,Inc. Orange County Related Member Party's Certification The Related Member Party represents, warrants, and certifies the truth,and accuracy of the statements made below. These certifications shall be deemed to be made a part of the CPA and are incorporated therein, and governed by its terms and conditions. (i) attached hereto is a true and correct copy of the Related Member Party's latest NCUI 101 form (or Multiple Worksite Report Form 3020, if applicable) filed with the State; and a copy of the NCUI 101 form (or Form 3020)filed with the State prior to the expansion; (ii) it has retained permanent full time jobs and temporary full time jobs; (iii) it has created and retained New Jobs,5 which are net new positions for the Related Member Party's operations in the state, and no New Job (or employee)has been transferred from any existing North Carolina operations of the Company, the Related Member Party, or any of their affiliates; (iv) it has obtained all required environmental permits for the Project(Company should cross out if Related Member Party does not have responsibility for environmental permitting); (v) it makes available health insurance to all of its permanent full-time employees at the Facility in the amount required for eligibility for tax credits under the Article 3J (House Bill 2170 § 105-129.83); (vi) attached hereto is a true and correct copy of the Related Member Party's fixed asset report showing a description, acquisition date and cost for each asset acquired, disposed of, or transferred from the date of the Grant(Company should cross out if Related Member Party's investment is not applicable to this Grant); (vii) it has made some or all of the Target Investment in the amount of ; (Company should cross out if Related Member Party is not making Required Investment) 5 This is determined by obtaining the average number of new employees over.the quarter reported. The company should add the three figures that represent NEW JOBS ONLY during each of the three months of the quarter reported in the NCUI 101,and divide that number by three. DO NOT INCLUDE PART-TIME, TEMPORARY OR SEASONAL JOBS, OR JOBS THAT EXISTED PRIOR TO THE GRANT AWARD. BE PREPARED TO SUPPORT THIS NUMBER WITH ADDITIONAL DOCUMENTATION, INCLUDING IDENTIFICATION OF INDIVIDUAL FULL-TIME EMPLOYEES AND THEIR WAGES. One NC Company Disbursement Request AKG North America,Inc. Orange County (viii) the average weekly wage of all of its employees in New Jobs, is $ ,6 f (ix) it is in compliance with all of the terms and conditions of the CPA and affirms the representations, warranties and covenants contained therein; (x) by not later than March 1 of each year following Closeout, for so long as the Company is required to retain jobs under the terms of the CPA, it shall submit to the DOC an annual report detailing Retained Jobs and New Jobs existing at the Related Member Party on December 31 of the year just ended; (xi) it understands that if any of the certifications provided herein prove to be false or misleading in any respect, it shall reimburse the DOC in the amount of this disbursement, and the DOC may pursue such other legal action as it deems appropriate; (xii) it is not liable for any Overdue Tax Debt, as defined in N.C. Gen. Stat. §105- 243.1 (a tax debt that remains unpaid 90 days or more after final assessment notice is sent); (xiii) there is no fact or circumstance or interest about which the Company has knowledge that would conflict in any manner or degree with the performance of its obligations under the CPA. AKG of America,Inc. (Related Member Party) By: Print Name: Title: (Corporate Seal) Authorized Corporate Officer Date: ATTEST: Secretary 6 This is determined by dividing the gross wages paid during the quarter to employees in New Jobs,by the average number of full-time jobs (see footnote 1) and then converting that number to a per week average,which must equal or exceed the wage standard,if any,set in the CPA. 7 One NC Company Disbursement Request AKG North America, Inc. Orange County Related Member Party's Certification The Related Member Party represents, warrants, and certifies the truth and accuracy of the statements made below. These certifications shall be deemed to be made a part of the CPA and are incorporated therein, and governed by its terms and conditions. (i) attached hereto is a true and correct copy of the Related Member Party's latest NCUI 101 form(or Multiple Worksite Report Form 3020,if applicable)filed with the State; and a copy of the NCUI 101 form(or Form 3020) filed with the State prior to the expansion; (ii) it has retained permanent full time jobs and temporary full time jobs; (iii) it has created and retained New Jobs,7 which are net new positions for the Related Member Party's operations in the state, and no New Job (or employee) has been transferred from any existing North Carolina operations of the Company, the Related Member Party, or any of their affiliates; (iv) it has obtained all required environmental permits for the Project (Company should cross out if Related Member Party does not have responsibility for environmental permitting); (v) it makes available health insurance to all of its permanent full-time employees at the Facility in the amount required for eligibility for tax credits under the Article 3J (House Bill 2170 § 105-129.83); (vi) attached hereto is a true and correct copy of the Related Member Party's fixed asset report showing a description, acquisition date and cost for each asset acquired, disposed of, or transferred from the date of the Grant (Company should cross out if Related Member Party's investment is not applicable to this Grant); (vii) it has made some or all of the Target Investment in the amount of ; (Company should cross out if Related Member Party is not making Required Investment) 7 This is determined by obtaining the average number of new employees over the quarter reported. The company should add the three figures that represent NEW JOBS ONLY during each of the three months of the quarter reported in the NCUI 101,and divide that number by three. DO NOT INCLUDE PART-TIME, TEMPORARY OR SEASONAL JOBS, OR JOBS THAT EXISTED PRIOR TO THE GRANT AWARD. BE PREPARED TO SUPPORT THIS NUMBER WITH ADDITIONAL DOCUMENTATION, INCLUDING IDENTIFICATION OF INDIVIDUAL FULL-TIME EMPLOYEES AND THEIR WAGES. 8 One NC Company Disbursement Request AKG North America,Inc. Orange County (viii) the average weekly wage of all of its employees in New Jobs, is $ .g (ix) it is in compliance with all of the terms and conditions of the CPA and affirms the representations, warranties and covenants contained therein; (x) by not later than March 1 of each year following Closeout, for so long as the Company is required to retain jobs under the terms of the CPA, it shall submit to the DOC an annual report detailing Retained Jobs and New Jobs existing at the Related Member Party on December 31 of the year just ended; (xi) it understands that if any of the certifications provided herein prove to be false or misleading in any respect,it shall reimburse the DOC in the amount of this disbursement, and the DOC may pursue such other legal action as it deems appropriate; (xii) it is not liable for any Overdue Tax Debt, as defined in N.C. Gen. Stat. §105- 243.1 (a tax debt that remains unpaid 90 days or more after final assessment notice is sent); (xiii) there is no fact or circumstance or interest about which the Company has knowledge that would conflict in any manner or degree with the performance of its obligations under the CPA. AKG Thermal Systems, Inc. (Related Member Party) By: Print Name: Title: (Corporate Seal) Authorized Corporate Officer Date: ATTEST: Secretary 8 This is determined by dividing the gross wages paid"during the quarter to employees in New Jobs, by the average number of full-time jobs (see footnote 1) and then converting that number to a per week average,which must equal or exceed the wage standard,if any,set in the CPA. 9 One NC Company Disbursement Request AKG North America,Inc. Orange County EXHIBIT B TO COMPANY PERFORMANCE AGREEMENT Provisions of N.C.General Statutes Addressing Public Records, Confidential Information,and Economic Development Projects §132-1. "Public records"defined withholding of public records relating to the proposed expansion or location of specific business or industrial projects when the release of (a) "Public record"or"public records"shall mean all documents, those records would frustrate the purpose for which they were created, papers, letters, maps, books, photographs, films, sound recordings, whenever a public agency or its subdivision performs a cost-benefit magnetic or other tapes, electronic data-processing records, artifacts,or analysis or similar assessment with respect to economic development other documentary material, regardless of physical form or incentives offered to a specific business or industrial project,the agency characteristics, made or received pursuant to law or ordinance in or its subdivision must describe in detail the assumptions and connection with the transaction of public business by any agency of methodologies used in completing the analysis or assessment. This North Carolina government or its subdivisions.Agency of North Carolina description is a public record and is subject to all provisions of this government or its subdivisions shall mean and include every public Chapter and other law regarding public records. office, public officer or official (State or local, elected or appointed), institution, board, commission, bureau, council, department, authority or (b) Disclosure of Public Records Requirements.—Whenever other unit of government of the State or of any county, unit, special an agency or its subdivision first proposes, negotiates, or accepts an district or other political subdivision of government. application for economic development incentives with respect to a specific industrial or business project, the agency or subdivision must (b) The public records and public information compiled by the disclose that any information obtained by the agency or subdivision is agencies of North Carolina government or its subdivisions are the subject to laws regarding disclosure of public records. In addition, the property of the people.. . agency or subdivision must fully and accurately describe the instances in which confidential information may be withheld from disclosure,the types §132-1.1. State tax information of information that qualify as confidential information, and the methods (b) State and Local Tax Information. —Tax information may for ensuring that confidential information is not disclosed." not be disclosed except as provided in G.S. 105-259. As used in this §132-6. Inspection and examination of records subsection, "tax information"has the same meaning as in G.S. 105-259. Local tax records that contain information about a taxpayer's income or (a) Every custodian of public records shall permit any record in receipts may not be disclosed except as provided in G.S. 153A-148.1 the custodian's custody to be inspected and examined at reasonable and G.S. 160A-208.1. times and under reasonable supervision by any person, and shall, as promptly as possible,furnish copies thereof upon payment of any fees as §132-1.2. Confidential information. may be prescribed by law... Nothing in this Chapter shall be construed to require or authorize a (c) No request to inspect, examine, or obtain copies of public public agency or its subdivision to disclose any information that: records shall be denied on the grounds that confidential information is commingled with the requested nonconfidential information. If it is (1) Meets all of the following conditions: necessary to separate confidential from nonconfidential information in a. Constitutes a"trade secret"as defined in G.S.66-152(3). order to permit the inspection, examination, or copying of the public b. Is the property of a private "person" as defined in G.S. records,the public agency shall bear the cost of such separation... 66-152(2). c. Is disclosed or furnished to the public agency in connection (d) Notwithstanding the provisions of subsections (a) and (b) of with the owner's performance of a public contract or in this section,public records relating to the proposed expansion or location connection with a bid, application, proposal, industrial of specific business or industrial projects may be withheld so long as development project, or in compliance with laws, their inspection, examination or copying would frustrate the purpose for regulations, rules, or ordinances of the United States, the which such public records were created;provided,however,that nothing State,or political subdivisions of the State. herein shall be construed to permit the withholding of public records d. Is designated or indicated as "confidential" or as a "trade relating to general economic development policies or activities. secret" at the time of its initial disclosure to the public agency. Once the State, a local government, or the specific business has announced a commitment by the business to expand or locate a specific §66-152. Definitions(Trade Secrets Protection Act) project in this State or a final decision not to do so and the business has communicated that commitment or decision to the State or local As used in this Article,unless the context requires otherwise: government agency involved with the project, the provisions of this subsection allowing public records to be withheld by the agency no (2) "Person" means an individual, corporation, government, longer apply. governmental subdivision or agency,business trust,estate,trust, partnership, association, joint venture, or any other legal or Once the provisions of this subsection no longer apply,the agency commercial entity. shall disclose as soon as practicable, and within 25 business days, public records requested for the announced project that are not (3) "Trade secret"means business or technical information, including otherwise made confidential by law. but not limited to a formula,pattern,program,device,compilation of information,method,technique,or process that: An announcement that a business or industrial project has a. Derives independent actual or potential commercial value committed to expand or locate in the State shall not require disclosure of from not being generally known or readily ascertainable local government records relating to the project if the business has not through independent development or reverse engineering selected a specific location within the State for the project. Once a by persons who can obtain economic value from its specific location for the project has been determined, local government disclosure or use;and records must be disclosed, upon request, in accordance with the b. Is the subject of efforts that are reasonable under the provisions of this section.For purposes of this section,"local government circumstances to maintain its secrecy. records" include records maintained by the State that relate to a local government's efforts to attract the project." The existence of a trade secret shall not be negated merely because the information comprising the trade secret has also been §132-9. Access to records developed, used, or owned independently by more than one person, or licensed to other persons. (b) In an action to compel disclosure of public records which have been withheld pursuant to the provisions of G.S. 132-6 concerning §132-1.8. Economic development incentives public records relating to the proposed expansion or location of particular businesses and industrial projects, the burden shall be on the custodian (a) Assumptions and Methodologies. — Subject to the withholding the records to show that disclosure would frustrate the provisions of this Chapter regarding confidential information and the purpose of attracting that particular business or industrial project.