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SEC Filings

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


User Requirements Specification Number 6, dated October 19, 2018 and issued November 2, 2018, lists deferred areas and scope reductions captured via the subcontractor bidding efforts. For the avoidance of doubt, the terms and the scope in User Requirements Specification Number 6 is not included in this Third Amendment, the Agreement, and/or all related exhibits and amendments thereto, and the items outlined in the User Requirements Specifications that are not included in the drawings are not considered required scope for this Project. The Parties further understand and agree that the Contract Drawings and Specifications listed in Exhibits 2 & 3 represent the agreed-upon scope of work, and therefore, supersede and override the terms of User Requirements Specifications.


The Parties hereto understand and agree that if deferred scope is added back into the Project, then a Change Order, increasing the GMP cost and Contract Time , shall be issued to address all additional scope changes,  in accordance with § 6.2 and 8.2 of the Agreement.  

§ A.1.5 Payments


§ A.1.5.1 Progress Payments


§ A.​Based upon Applications for Payment submitted to the Owner by the Design-Builder, the Owner shall make progress payments on account of the Contract Sum to the Design-Builder as provided below and elsewhere in the Design-Build Documents.

§ A.​The period covered by each Application for Payment shall be one calendar month ending on the last day of the month, or as follows:


§ A.​Provided that an Application for Payment is received not later than the  30TH  day of the month, the Owner shall make payment of the certified and undisputed amount to the Design-Builder not later than the  30TH  day of the  subsequent  month. Timely payment is a material term to this Agreement.   Exyte also recognizes that Project funding is being provided to Athenex by the State of New York.   Amounts remaining unpaid sixty (60) days after certified and undisputed invoiced amounts are received by Athenex from Exyte shall bear interest at the rate of 1.5% per month on the unpaid balance.   Exyte acknowledges that approval of the New York State Empire State Development Corporation is required under this Contract prior to payment.   Said approval shall not be unreasonably withheld.   Exyte further acknowledges its responsibility to provide appropriate documentation required by the New York State Empire Development Corporation, including, but not limited to, all required payment application forms and MWBE information/certifications.  

(Federal, state or local laws may require payment within a certain period of time.)

§ A.​With each Application for Payment where the Contract Sum is based upon the Cost of the Work, or the Cost of the Work with a Guaranteed Maximum Price, the Design-Builder shall submit payrolls, petty cash accounts, receipted invoices or invoices with check vouchers attached, and any other evidence required by the Owner to demonstrate that cash disbursements already made by the Design-Builder on account of the Cost of the Work equal or exceed (1) progress payments already received by the Design-Builder, less (2) that portion of those payments attributable to the Design-Builder’s Fee; plus (3) payrolls for the period covered by the present Application for Payment.

§ A.​With each Application for Payment where the Contract Sum is based upon a Stipulated Sum or Cost of the Work with a Guaranteed Maximum Price, the Design-Builder shall submit the most recent schedule of values in accordance with the Design-Build Documents. The schedule of values shall allocate the entire Contract Sum among the various portions of the Work. Compensation for design services, if any, shall be shown separately. Where the Contract Sum is based on the Cost of the Work with a Guaranteed Maximum Price, the Design-Builder’s Fee shall be shown separately. The schedule of values shall be prepared in such form and supported by such data to substantiate its accuracy as the Owner may require. This schedule of values, unless objected to by the Owner, shall be used as a basis for reviewing the Design-Builder’s Applications for Payment.

§ A.​In taking action on the Design-Builder’s Applications for Payment, the Owner shall be entitled to rely on the accuracy and completeness of the information furnished by the Design-Builder and shall not be deemed to have made a detailed examination, audit or arithmetic verification of the documentation submitted in accordance with Sections A. or A., or other supporting data; to have made exhaustive or continuous on-site inspections; or to have made examinations to ascertain how or for what purposes the Design-Builder has used amounts previously paid. Such examinations, audits and verifications, if required by the Owner, will be performed by the Owner’s auditors acting in the sole interest of the Owner.