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SEC Filings

10-Q
ATHENEX, INC. filed this Form 10-Q on 05/09/2019
Entire Document
 
atnx-ex10311_795.htm

Exhibit 10.31.1

 

FIRST AMENDMENT

TO THE

AGREEMENT

THIS FIRST AMENDMENT TO THE AGREEMENT (the “First Amendment”) effective as of March 27, 2018, (the “First Amendment Effective Date”), is by and between Athenex, Inc., a(n) New York Company/Corporation/Sole Proprietor/LLC, having an address at Conventus Building, 1001 Main Street, Suite 600, Buffalo NY 14023 (hereinafter referred to as “Owner”) and M+W U.S., Inc., a Delaware Corporation, having an address at 201 Fuller Road, Suite 401, Albany, New York 12203, (hereinafter referred to as M+W).  Capitalized terms used and not otherwise defined herein shall have the meaning set forth in the AGREEMENT (as defined below).

RECITALS:

Whereas Owner and M+W entered into that certain Agreement, between M+W U.S., Inc. and Owner, (collectively the “parties”), dated 29 December, 2017 (the “Original Agreement”).

Whereas, Owner and M+W desire to further supplement and amend the Original Agreement, including all previous Amendments, if any, on the terms and conditions set forth herein.  

Whereas, the Original Agreement executed by the parties is in the form of AIA A141 (the “Form”). The Form is structured to allow for Preliminary Design to be accomplished and then, by using such Preliminary Design documents approved by the Owner, establish a Guaranteed Maximum Price (GMP) for the overall Contract Sum. The Form is structured to memorialize such GMP in AIA A141 Exhibit A, (called the ‘Amendment’)

Whereas, the Original Agreement requires the parties agree to a GMP prior to continuing on with the execution of the remainder of the Work, specifically the:

 

a.

Detailed design; and

 

b.

Construction (including procurement of Long Lead Materials and Equipment).

Whereas, the parties agree that “Phase I of the Work” of the Original Agreement (§1.1.6.1) and “Phase II of the Work” (BOD) (§1.1.6.2.2), have both been properly performed.  

Whereas, the parties agree that they will not be prepared to agree to a GMP by February 28, 2018 as contemplated by the Original Agreement

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Owner and M+W agree that the Original Agreement shall be further amended as of the First Amendment Effective Date as follows which shall supersede the Original Agreement as stated herein:

 

1)

The parties have agreed to extend the targeted date of executing Exhibit A of the Form to a date which is mutually agreed and reasonably appropriate for the progress of the Project.

 

2)

The parties agree that, for the avoidance of doubt, and the Substantial Completion Date is as originally agreed, and remains December 31, 2019;