**Exhibit 10.1**

 

FIRST AMENDMENT TO LEASE

 

THIS FIRST AMENDMENT TO LEASE dated as of this 23rd day of July, 2010 by and betweenBOSTON 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”), Landlorddid lease to Tenant and Tenant did hire and lease from Landlord certainpremises containing 87,924 square feet of rentable floor area (the “RentableFloor Area of the Initial Premises”) on the first (1st),second (2nd) and third (3rd) floors of thebuilding (the “Building”) known as and numbered 200 West Street, Waltham,Massachusetts (referred to in the Lease as the “Premises” and hereinaftersometimes referred to as the “Initial Premises”).

 

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

 

Landlord and Tenant are entering into this instrument toset forth said leasing of the Third Floor Expansion Premises, to integrate theThird 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 theparties to the other, the receipt and sufficiency of which are hereby severallyacknowledged, and in further consideration of the mutual promises hereincontained, Landlord and Tenant hereby agree to and with each other as follows:

 

1.                                       Effective as of the Third Floor Expansion Premises Commencement Date (asdefined in Section 5 below), the Third Floor Expansion Premises shallconstitute a part of the “Premises” demised to Tenant under the Lease, so thatthe Premises (as defined in Section 1.2 of the Lease) shall include boththe Initial Premises and the Third Floor Expansion Premises and shall contain atotal of 97,242 square feet of rentable floor area.  By way of example the option to extend theTerm of the Lease provided in Section 3.2 of the Lease shall apply to boththe Initial Premises and the Third Floor Expansion Premises collectively butnot to either space independently.

 

2.                                       The Term of the Lease for both the Initial Premises and the Third FloorExpansion 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 herebyamended by deleting the definition therein set forth and substituting thereforthe following:

 

LeaseTerm:                                (i)            As to the InitialPremises, the period beginning on the Commencement Date and ending on the lastday of the one hundred twentieth (120th) fullcalendar month immediately following the Commencement Date, unless extended orsooner terminated as hereinafter provided.

 

(ii)           Asto the Third Floor Expansion Premises, a period beginning on the Third FloorExpansion Premises Commencement Date and ending on the last day of the onehundred twentieth (120th) full calendar monthimmediately following the Commencement Date, unless extended or soonerterminated as hereinafter provided.

 

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

 

(B)           Duringthe period commencing on the Third Floor Expansion Premises Commencement Dateand ending on the last day of the sixtieth (60th) fullcalendar month immediately following the Commencement Date, Annual Fixed Rentfor 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 RentableFloor Area of the Third Floor Expansion Premises (being 9,318 square feet)).

 

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

 

(D)          AnnualFixed 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 (asdetermined pursuant to Section 5.2 of the Lease), Landlord’s Tax ExpensesAllocable to the Premises (as determined pursuant to Section 6.1 of theLease) and Operating Expenses Allocable to the Premises (as determined pursuantto Section 7.4 of the Lease), for the portion of the Term on and after theThird Floor Expansion Premises Commencement Date, the “Rentable Floor Area ofthe Premises” shall comprise a total of 97,242 square feet including both theRentable Floor Area of the Initial Premises (being 87,924 square feet) and theRentable Floor Area of the Third Floor Expansion Premises (being 9,318 squarefeet).  For the portion of the Lease Termprior to the Third Floor Expansion Premises

 

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

 

5.                                       (A)          It is understood andagreed 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 theLease shall apply to the design and construction of the Tenant Improvement Workin the Third Floor Expansion Premises.

 

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

 

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

 

(C)           Notwithstandinganything contained in the Lease or herein to the contrary, in the event thatthe Tenant Improvement Work in the Third Floor Expansion Premises has not beenSubstantially Completed on or before the Estimated Commencement Date as theresult of any (i) Tenant Delay, (ii) Landlord’s Force Majeure or (iii) holdingover by the then-current occupant of the Third Floor Expansion Premises (any ofthe foregoing clauses (i) through (iii) being a “Permitted Delay”),but Landlord would otherwise be entitled to the four percent (4%) ConstructionManagement Fee under Section 1.1(C) of Exhibit B-1 to the Leasewith respect to the remainder of the Landlord’s Work, then Landlord shallnonetheless be entitled to such four percent (4%) Construction Management Feeand the costs of the Tenant Improvement Work in the Third Floor ExpansionPremises shall be included within the hard construction costs on which theConstruction Management Fee is based; provided, however, that for the avoidanceof doubt Landlord acknowledges and agrees that in the event that the Tenant ImprovementWork in the Third Floor Expansion Premises has not been Substantially Completedon or before the Estimated Commencement Date as the result of any reason otherthan a

 

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

 

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

 

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

 

8.                                       Except as herein amended the Lease shall remain unchanged and in fullforce 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 yearfirst 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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