Exhibit 10.1


 


FIRST AMENDMENT TO LEASE


 


THIS FIRST AMENDMENT TO LEASE dated as of this 23rd day of July, 2010 by and between
BOSTON PROPERTIES LIMITED PARTNERSHIP, a Delaware limited partnership (“Landlord”)
and A123 SYSTEMS, INC., a Delaware corporation (“Tenant”).


 


RECITALS


 


By Lease dated May 19, 2010 (the “Lease”), Landlord
did lease to Tenant and Tenant did hire and lease from Landlord certain
premises containing 87,924 square feet of rentable floor area (the “Rentable
Floor Area of the Initial Premises”) on the first (1st),
second (2nd) and third (3rd) floors of the
building (the “Building”) known as and numbered 200 West Street, Waltham,
Massachusetts (referred to in the Lease as the “Premises” and hereinafter
sometimes referred to as the “Initial Premises”).


 


Section 17.2 of the Lease contemplates that
Landlord and Tenant execute an amendment to the Lease in order to document the
inclusion of the Third Floor Expansion Premises, comprised of additional 9,318
square feet of rentable floor area (the “Rentable Floor Area of the Third Floor
Expansion Premises”) located on the third (3rd)
floor of the Building, into the Premises (which Third Floor Expansion Premises
is shown on Exhibit F attached to the Lease).


 


Landlord and Tenant are entering into this instrument to
set forth said leasing of the Third Floor Expansion Premises, to integrate the
Third Floor Expansion Premises into the Lease and to amend the Lease.


 


NOW THEREFORE, in consideration of One Dollar ($1.00)
and other good and valuable consideration in hand this date paid by each of the
parties to the other, the receipt and sufficiency of which are hereby severally
acknowledged, and in further consideration of the mutual promises herein
contained, Landlord and Tenant hereby agree to and with each other as follows:


 


1.                                       Effective as of the Third Floor Expansion Premises Commencement Date (as
defined in Section 5 below), the Third Floor Expansion Premises shall
constitute a part of the “Premises” demised to Tenant under the Lease, so that
the Premises (as defined in Section 1.2 of the Lease) shall include both
the Initial Premises and the Third Floor Expansion Premises and shall contain a
total of 97,242 square feet of rentable floor area.  By way of example the option to extend the
Term of the Lease provided in Section 3.2 of the Lease shall apply to both
the Initial Premises and the Third Floor Expansion Premises collectively but
not to either space independently.


 


2.                                       The Term of the Lease for both the Initial Premises and the Third Floor
Expansion Premises shall be coterminous. 
Accordingly, the definition of the “Lease Term” as set 


 


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forth in Section 1.2 of the Lease is hereby
amended by deleting the definition therein set forth and substituting therefor
the following:


 


Lease
Term:                                (i)            As to the Initial
Premises, the period beginning on the Commencement Date and ending on the last
day of the one hundred twentieth (120th) full
calendar month immediately following the Commencement Date, unless extended or
sooner terminated as hereinafter provided.


 


(ii)           As
to the Third Floor Expansion Premises, a period beginning on the Third Floor
Expansion Premises Commencement Date and ending on the last day of the one
hundred twentieth (120th) full calendar month
immediately following the Commencement Date, unless extended or sooner
terminated as hereinafter provided.


 


3.                                       (A)          Annual Fixed Rent for
the Initial Premises shall continue to be payable as set forth in the Lease.


 


(B)           During
the period commencing on the Third Floor Expansion Premises Commencement Date
and ending on the last day of the sixtieth (60th) full
calendar month immediately following the Commencement Date, Annual Fixed Rent
for the Third Floor Expansion Premises shall be payable at the annual rate of
$232,950.00 (being the product of (i) $25.00 and (ii) the Rentable
Floor Area of the Third Floor Expansion Premises (being 9,318 square feet)).


 


(C)           During
the period commencing on the first day of the sixty-first (61st) full calendar month immediately following the Commencement Date and
ending on the last day of the Original Lease Term, Annual Fixed Rent for the
Third Floor Expansion Premises shall be payable at the annual rate of
$251,586.00 (being the product of (i) $27.00 and (ii) the Rentable
Floor Area of the Third Floor Expansion Premises).


 


(D)          Annual
Fixed Rent for the Premises during any extension option period (if exercised)
shall be payable as set forth in Section 3.2 of the Lease.


 


4.                                       For the purposes of computing Tenant’s payments for electricity (as
determined pursuant to Section 5.2 of the Lease), Landlord’s Tax Expenses
Allocable to the Premises (as determined pursuant to Section 6.1 of the
Lease) and Operating Expenses Allocable to the Premises (as determined pursuant
to Section 7.4 of the Lease), for the portion of the Term on and after the
Third Floor Expansion Premises Commencement Date, the “Rentable Floor Area of
the Premises” shall comprise a total of 97,242 square feet including both the
Rentable Floor Area of the Initial Premises (being 87,924 square feet) and the
Rentable Floor Area of the Third Floor Expansion Premises (being 9,318 square
feet).  For the portion of the Lease Term
prior to the Third Floor Expansion Premises


 


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Commencement Date, the “Rentable Floor Area of
the Premises” shall continue to be the Rentable Floor Area of the Initial
Premises for such purposes.


 


5.                                       (A)          It is understood and
agreed that, except as may otherwise be expressly provided in this Section 5,
the terms and provisions of Exhibits B-1, B-2, B-3, B-4, B-5 and B-6 of the
Lease shall apply to the design and construction of the Tenant Improvement Work
in the Third Floor Expansion Premises.


 


(B)           Assuming
that the Tenant Improvement Work to be performed by Landlord in the Third Floor
Expansion Premises is shown on the Interim Plans and the Tenant Plans to be
delivered by Tenant to Landlord in accordance with Section 1.1 of Exhibit B-1
to the Lease, the Tenant Improvement Work in the Third Floor Expansion Premises
shall be deemed to be a part of the Landlord’s Work, as if the Third Floor
Expansion Premises were part of the Initial Premises. Accordingly, the “Third
Floor Expansion Premises Commencement Date” shall be the Commencement Date, as
determined in accordance with Section 1.3 of Exhibit B-1 to the
Lease, subject, however, to the provisions of Section 17.2(D) of the
Lease and to the provisions of the immediately following paragraph.


 


Notwithstanding anything contained in the Lease
or herein to the contrary, in the event that any holding over by the
then-current occupant of the Third Floor Expansion Premises causes a delay in
Landlord’s ability to perform the Tenant Improvement Work in the Third Floor
Expansion Premises (Landlord hereby representing that it delivered a
termination notice under the ClickSquared Lease on May 19, 2010), the
Commencement Date for the Initial Premises shall continue to be as determined
in accordance with Section 1.3 of Exhibit B-1 to the Lease
notwithstanding the fact that the Tenant Improvement Work in the Third Floor
Expansion Premises has not been Substantially Completed (and the Third Floor
Expansion Premises shall be as determined pursuant to Section 17.2(D) of
the Lease).


 


(C)           Notwithstanding
anything contained in the Lease or herein to the contrary, in the event that
the Tenant Improvement Work in the Third Floor Expansion Premises has not been
Substantially Completed on or before the Estimated Commencement Date as the
result of any (i) Tenant Delay, (ii) Landlord’s Force Majeure or (iii) holding
over by the then-current occupant of the Third Floor Expansion Premises (any of
the foregoing clauses (i) through (iii) being a “Permitted Delay”),
but Landlord would otherwise be entitled to the four percent (4%) Construction
Management Fee under Section 1.1(C) of Exhibit B-1 to the Lease
with respect to the remainder of the Landlord’s Work, then Landlord shall
nonetheless be entitled to such four percent (4%) Construction Management Fee
and the costs of the Tenant Improvement Work in the Third Floor Expansion
Premises shall be included within the hard construction costs on which the
Construction Management Fee is based; provided, however, that for the avoidance
of doubt Landlord acknowledges and agrees that in the event that the Tenant Improvement
Work in the Third Floor Expansion Premises has not been Substantially Completed
on or before the Estimated Commencement Date as the result of any reason other
than a


 


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Permitted Delay, then Landlord shall not be
entitled to the four (4%) Construction Management Fee under Section 1.1(C) of
Exhibit B-1 to the Lease with respect to all or any portion of the
Landlord’s Work.


 


6.                                       Tenant and Landlord warrant and represent that neither party has dealt
with any broker in connection with the consummation of this Lease other than
the broker, person or firm designated in Section 1.2 of the Lease; and in
the event any claim is made against either party relative to dealings with
brokers other than the broker designated in said Section 1.2, the other
party shall defend the claim against such party with counsel of the other party’s
selection and save harmless and indemnify such party on account of loss, cost
or damage which may arise by reason of such claim. Landlord agrees that it
shall be solely responsible for the payment of brokerage commissions to the
broker, person or firm designated in Section 1.2 of the Lease in
connection with the Original Lease Term.


 


7.                                       Except as otherwise expressly provided herein, all capitalized terms used
herein without definition shall have the same meanings as are set forth in the
Lease.


 


8.                                       Except as herein amended the Lease shall remain unchanged and in full
force and effect.  All references to the “Lease”
shall be deemed to be references to the Lease as herein amended.


 


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EXECUTED as a sealed instrument as of the date and year
first above written.


 


 


	
   

  	
  LANDLORD:

  
	
   

  	
   

  
	
   

  	
  BOSTON PROPERTIES LIMITED PARTNERSHIP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Boston Properties, Inc., its general
  partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ David C. Provost

  
	
   

  	
   

  	
  Name:

  	
  David C. Provost

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President Boston Properties

  



 


 


	
   

  	
  TENANT:

  
	
   

  	
   

  
	
  ATTEST:

  	
  A123 SYSTEMS, INC.

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Eric Pyenson

  	
   

  	
  By:

  	
  /s/ Michael Rubino

  
	
  Name:

  	
  Eric Pyenson

  	
   

  	
  Name:

  	
  Michael Rubino

  
	
  Title:

  	
  Secretary or Assistant Secretary

  	
   

  	
  Title:

  	
  President or Vice President, CFO

  
	
   

  	
   

  	
   

  	
   

  	
  Hereunto duly authorized

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ John Granara

  
	
   

  	
   

  	
   

  	
  Name:

  	
  John Granara

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Treasurer or Assistant Treasurer

  
	
   

  	
   

  	
   

  	
   

  	
  Hereunto duly authorized

  



 


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