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


Exhibit 10.31.2





THIS SECOND AMENDMENT TO THE AGREEMENT (the “Second Amendment”) effective as of October 1, 2018, (the “Second 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).


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”) and the First Amendment dated effective March 27, 2018.

Whereas, Owner and M+W desire to further supplement and amend the Original Agreement and the First Amendment, 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 and the First Amendment require the parties agree to a GMP prior to continuing on with the execution of the remainder of the Work, specifically the:



Detailed design; and



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

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 Second Amendment Effective Date as follows which shall supersede the Original Agreement and the First Amendment as stated herein:



The parties have agreed to extend the targeted date for executing Exhibit A of the Form (i.e. establishment of the GMP), from October 12, 2018 until November 16, 2018, based on the following timeline:



9/15: 85% Package issued to bidders  



10/12: IFC from GEI



10/16: Provide IFC drawings and specifications  to bidders



10/26: Bids Due from subs



10/29 – 11/2:  Bids opened / leveling start / Assemble GMP



11/5   – 11/9:  M+W Germany Approval Expected to Start



11/12:  Target Date for GMP value submitted to Athenex.  Submitted expected to be no later than 11/16.



11/30: Final AIA A141 Exhibit A (the “Amendment”) executed.  



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



The parties agree that in order to maintain the current project schedule prior to the date establishing the GMP (as shown above in Section 1.g), additional funding is necessary. Owner agrees to commit an additional amount (shown in #4 below) via this 2nd Amendment to increase the Contract Sum. This increase is based on the parties’ reasonable estimate necessary to maintain funding between the Second Amendment Effective Date and the execution of Exhibit A (now scheduled as shown in Section 1.h above). Such funding shall be for construction management, bidding, awarding the work, material/equipment order commitments, other costs, reimbursables, design and fees, as required under the Original Agreement, the 1st  Amendment and this 2nd Amendment.