Exhibit 10.41


 


FIRST AMENDMENT TO LEASE


 


THIS FIRST  AMENDMENT TO LEASE (this “Amendment”)
is entered into as of this 17th day of August, 2007, by and between BMR-217TH
PLACE LLC, a Delaware limited liability company (“Landlord”), and SONUS
PHARMACEUTICALS, INC. (“Tenant”).


 


RECITALS


 


A.            WHEREAS, Landlord and Tenant entered into that certain
Lease dated as of November 21, 2006 (the “Lease”), whereby Tenant leases
certain premises (the “Premises”) from Landlord at 1522 217th
Place SE in Bothell, Washington (the “Building”);


 


B.            WHEREAS, Tenant desires to increase the size of the
Premises and Tranche 3; and


 


C.            WHEREAS, Landlord and Tenant desire to modify and amend
the Lease only in the respects and on the conditions hereinafter stated.


 


AGREEMENT


 


NOW, THEREFORE, Landlord and Tenant, in
consideration of the mutual promises contained herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound, agree as follows:


 


1.             Definitions. 
For purposes of this Amendment, capitalized terms shall have the
meanings ascribed to them in the Lease unless otherwise defined herein.  The Lease, as amended by this Amendment,
shall be referred to herein as the “Amended Lease.”


 


2.             Premises. 
The attached Exhibit A replaces and supersedes in its
entirety Exhibit A attached to the Lease.


 


3.             Rentable Area of Building and Premises.  Landlord and Tenant acknowledge that,
pursuant to the current Approved Plans, the Rentable Area of the (a) Building
is sixty-seven thousand seven hundred ninety-nine (67,799) square feet and (b) Premises
is forty-two thousand six hundred twenty-eight (42,628) square feet, in each
case subject to further adjustment in accordance with the Lease.  Section 2.2 of the Lease is
hereby replaced in its entirety with the following:


 


In the definitions below,
each Rentable Area (as defined below) is expressed in rentable square
footage.  Rentable Area and Tenant’s Pro
Rata Share are all subject to adjustment as provided in this Lease.


 

















 




	
  Definition or Provision

  	
   

  	
  Means the Following (As of the

  Term Commencement Date)

  
	
  Rentable Area of Premises

  	
   

  	
  42,628 square feet

  
	
  Rentable Area of Building

  	
   

  	
  67,799 square feet

  
	
  Tenant’s Pro Rata Share of Building

  	
   

  	
  62.87%

  






 


4.             Increase in Tranche 3.  Section 5.2 of the Lease is
hereby replaced in its entirety with the following:


 


Landlord shall cause to be constructed the tenant improvements in the
Premises (the “Tenant Improvements”) pursuant to the Work Letter at a
cost to Landlord (the “Tenant Improvement Allowance”) not to exceed Seven
Million Six Hundred Seventy-Three Thousand Forty Dollars ($7,673,040) (based
upon One Hundred Eighty Dollars ($180) per rentable square foot, as adjusted
based on the finally determined Rentable Area of the Premises), which amount
shall include the costs of (a) construction, (b) project management
by Landlord (which fee shall equal three percent (3%) of the Tenant
Improvement Allowance actually paid by Landlord but not less than 3% of the
product of the Rentable Area of the Premises times One Hundred Twenty-Five
Dollars ($125) per rentable square foot), (c) space planning, architect,
engineering and other related services and (d) building permits and other
planning and inspection fees.  The Tenant
Improvement Allowance shall consist of an allowance of (x) One Hundred
Twenty-Five Dollars ($125) per rentable square foot, which shall be expended
first, (y) an additional Twenty-Five Dollars ($25) per rentable square
foot, which shall be expended second (“Tranche 2”), and (z) an
additional Thirty Dollars ($30) per rentable square foot, which shall be
expended third (“Tranche 3”).  If
the total cost of the Tenant Improvements exceeds the Tenant Improvement Allowance,
then the overage shall be paid by Tenant to Landlord prior to the Term
Commencement Date.  Tenant shall have
until December 31, 2007, to expend the unused portion of the Tenant
Improvement Allowance, after which date Landlord’s obligation to fund such
costs shall expire.  Tenant shall pay to
Landlord, as Additional Rent (the “TI Rent”), Tranche 2 or so much
thereof as is actually paid by Landlord amortized over the final one hundred
twenty (120) months of the initial Term at a rate of ten percent (10%) per
annum, and Tranche 3 or so much thereof as is actually paid by Landlord
amortized over the final one hundred twenty (120) months of the initial Term at
a rate of twelve percent (12%) per annum.


 


5.             Broker.  Tenant represents and warrants that it has not
dealt with any broker or agent in the negotiation for or the obtaining of this
Amendment other than Landlord’s Broker and Tenant’s Broker, and agrees to
indemnify, defend and hold Landlord harmless from any and all cost or liability
for compensation claimed by any other broker or agent employed or engaged by it
or claiming to have been employed or engaged by it.  Landlord represents and warrants that it has
not dealt with any broker or agent in the negotiation for or the obtaining of
this Amendment other than Landlord’s Broker and Tenant’s Broker, and agrees to
indemnify, defend and hold Tenant harmless 


 


2

















 


from any and all cost or liability for
compensation claimed by any other broker or agent employed or engaged by it or
claiming to have been employed or engaged by it.  Tenant shall have no obligation to compensate
Landlord’s Broker or Tenant’s Broker due to this Amendment.


 


6.             No Default. 
Tenant represents, warrants and covenants that, to the best of Tenant’s
knowledge, Landlord and Tenant are not in default of any of their respective
obligations under the Lease and no event has occurred that, with the passage of
time or the giving of notice (or both) would constitute a default by either
Landlord or Tenant thereunder.  Landlord
represents, warrants and covenants that, to the best of Landlord’s knowledge,
Landlord and Tenant are not in default of any of their respective obligations
under the Lease and no event has occurred that, with the passage of time or the
giving of notice (or both) would constitute a default by either Landlord or
Tenant thereunder.


 


7.             Effect of
Amendment.  Except as modified by this Amendment, the
Lease and all the covenants, agreements, terms, provisions and conditions
thereof shall remain in full force and effect and are hereby ratified and affirmed.  The covenants, agreements, terms, provisions
and conditions contained in this Amendment shall bind and inure to the benefit
of the parties hereto and their respective successors and, except as otherwise
provided in the Lease, their respective assigns.  In the event of any conflict between the
terms contained in this Amendment and the Lease, the terms herein contained
shall supersede and control the obligations and liabilities of the parties.  From and after the date hereof, the term “Lease”
as used in the Lease shall mean the Lease, as modified by this Amendment.


 


8.             Miscellaneous. 
This Amendment becomes effective only upon execution and delivery hereof
by Landlord and Tenant. The captions of the paragraphs and subparagraphs in
this Amendment are inserted and included solely for convenience and shall not
be considered or given any effect in construing the provisions hereof.  All exhibits hereto are incorporated herein
by reference.


 


9.             Counterparts.  This
Amendment may be executed in one or more counterparts that, when taken
together, shall constitute one original.


 


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IN WITNESS WHEREOF, Landlord and Tenant have
hereunto set their hands as of the date and year first above written, and
acknowledge that they possess the requisite authority to enter into this
transaction and to execute this Amendment.


 


	
  LANDLORD:

  	
   

  
	
   

  
	
  BMR-217TH PLACE LLC,

  
	
  a Delaware limited liability
  company

  
	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  
	
   

  
	
  TENANT:

  	
   

  
	
   

  
	
  SONUS PHARMACEUTICALS, INC.,

  
	
  a Delaware corporation

  
	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 

















 


EXHIBIT A


 


PREMISES


 


[Floor Plan]


 

















 


ACKNOWLEDGEMENT


 


	
  STATE OF              

  	
  §

  
	
   

  	
  §

  
	
  COUNTY OF              

  	
  §

  



 


On                  ,
200   , before me, a Notary Public in and for said state,
personally appeared                                              ,
personally known to me(or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and acknowledged
to me that he executed the same in his authorized capacity, in that by his
signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.


 


WITNESS
my hand and official seal.


 


	
   

  	
   

  
	
   

  	
  ,
  Notary Public

  



 


 


ACKNOWLEDGEMENT


 


	
  STATE OF             

  	
  §

  
	
   

  	
  §

  
	
  COUNTY OF               

  	
  §

  



 


On                  ,
200   , before me, a Notary Public in and for said state,
personally appeared                                                     ,
personally known to me(or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity, in
that by his signature on the instrument the person, or the entity upon behalf
of which the person acted, executed the instrument.


 


WITNESS
my hand and official seal.


 


	
   

  	
   

  
	
   

  	
  ,
  Notary Public