**Exhibit 10.1**

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**SECONDAMENDMENT TO LEASE**

 

THIS SECOND****AMENDMENT TO LEASE(this “Amendment”) is entered into as of this 28th day ofJanuary, 2008, by and between BMR-217TH PLACE LLC, a Delawarelimited 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, as amended by that certain First Amendment to Lease dated as of August 17,2007 (collectively, the “Lease”), whereby Tenant leases certain premises(the “Premises”) from Landlord at 1522 217th Place SE inBothell, Washington (the “Building”); and

 

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

 

**AGREEMENT**

 

NOW, THEREFORE, Landlord andTenant, in consideration of the mutual promises contained herein and for othergood and valuable consideration, the receipt and sufficiency of which arehereby acknowledged, and intending to be legally bound, agree as follows:

 

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

 

2.                                       SalesTax.

 

a.                                       Retail sales tax otherwise applicable to portionsof construction of the Building and Tenant Improvements and other improvementsmade or requested by Tenant may be eligible for deferral pursuant to RCW 82.63 (the“Sales Tax Deferral”) as a result ofthe uses of the Premises intended by Tenant. Landlord shall make applicationwith the Washington State Department of Revenue (the “State”) for theSales Tax Deferral with respect to work to be performed and paid for byLandlord pursuant to the Amended Lease.  When the State has determined the final amount of the sales tax whichLandlord may defer pursuant to the Sales Tax Deferral Program Landlord willprovide Tenant with written notice of such amount.

 

b.                                      Tenant agrees if a subsequent audit by the Statedetermines that, (a) because Tenant’s use of the Premises has changed or (b) forany other reason, any of the sales tax previously deferred pursuant to theSales Tax Deferral is now due and owing to the State, Tenant shall pay toLandlord, within ten (10) days following the date Landlord notifies Tenantof any such determination by the State, an amount equal to the amount requiredto be paid to the State, including any penalties and interest due to the State;provided that Tenant may conduct a good faith contest of any suchdetermination by the State in accordance with appropriate administrativeprocedures so long  as  payment of the amount claimed by the State isstayed during the conduct of the contest. If Tenant desires to dispute the amount claimed by the State to be duebut payment of such amount is not stayed 

 

Form dated 2/16/07

 

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during the conduct of theproceedings, Tenant shall pay the amount due but at Tenant’s request, Landlordshall pay the amount claimed by the State under protest.

 

c.                                       Landlordshall reasonably cooperate with and assist Tenant in any challenges or auditsto the Sales Tax Deferral benefit, at no cost to Landlord.  Landlord shall promptly notify Tenant of anysuch action of which Landlord becomes aware, and shall promptly forward anycorrespondence regarding any such challenge or audit.  Tenant shall have the right to contest orreview on its own behalf (but not on Landlord’s behalf) any proceedingsregarding the Sales Tax Deferral benefit that may be instituted, either before,during or after the Term of the Amended Lease. Landlord shall, on a timely basis, execute all necessary instruments inconnection with any such protest, appeal or other proceedings, at no cost toLandlord.  If any proceeding may only beinstituted and maintained by Landlord, then Landlord shall do so at Tenant’scost upon the request of Tenant, unless Landlord reasonably objects.

 

d.                                      To secure Tenant’s payment obligations undersubparagraph (b) above, Tenant shall provide Landlord with a letter ofcredit that meets the requirements of Section 9.7 of the Lease withinten (10) days after Landlord provides Tenant with written notice of theamount of the Sales Tax Deferral approved by the State.  Such letter of credit shall be in amountequal to the amount of any Sales Tax Deferral, which letter of credit Landlordmay draw upon in the event that Tenant timely fails to pay any amount payableby Tenant pursuant to subparagraph (b) above.

 

e.                                       The letter of credit will renew automaticallyannually, for consecutive one (1) year periods, at least thirty (30) daysprior to the anniversary date of its initial issuance, until the expiration ofthe State’s audit and claim rights with respect to the Sales Tax Deferral.  The amount of the letter of credit will reduceannually to reflect the reduction in the amount of the sales tax (and penaltiesand interest) which the State is entitled to recover from Landlord with respectto the Sales Tax Deferral.  If the letterof credit does not renew as provided above, Landlord shall so advise Tenant andif Tenant does not cause the renewal within three (3) business daysthereafter Landlord shall have the right to draw on the letter of credit to theextent of its potential liability with respect to the Sales Tax Deferral Program,and any funds so drawn by Landlord will be held by Landlord in an interestbearing account as security for Tenant’s performance of its obligationsunder  subparagraph (b) above untilthe State’s audit and claim rights expire.

 

3.                                       Broker.  Tenant represents andwarrants that it has not dealt with any broker or agent in the negotiation foror the obtaining of this Amendment other than Landlord’s Broker and Tenant’sBroker, and agrees to indemnify, defend and hold Landlord harmless from any andall cost or liability for compensation claimed by any other broker or agentemployed or engaged by it or claiming to have been employed or engaged byit.  Landlord represents and warrantsthat it has not dealt with any broker or agent in the negotiation for or theobtaining of this Amendment other than Landlord’s Broker and Tenant’s Broker,and agrees to indemnify, defend and hold Tenant harmless from any and all costor liability for compensation claimed by any other broker or agent employed orengaged by it or claiming to have been employed or engaged by it.  Tenant shall have no obligation to compensateLandlord’s Broker or Tenant’s Broker due to this Amendment.

 

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

 

5.                                       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 forceand effect and are hereby ratified and affirmed.  The covenants, agreements, terms, provisionsand conditions contained in this Amendment shall bind and inure to the benefitof the parties hereto and their respective successors and, except as otherwiseprovided in the Lease, their respective assigns.  In the event of any conflict between theterms contained in this Amendment and the Lease, the terms herein contained shallsupersede 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.

 

6.                                       Miscellaneous. This Amendment becomes effective only upon execution and delivery hereofby Landlord and Tenant. The captions of the paragraphs and subparagraphs inthis Amendment are inserted and included solely for convenience and shall notbe considered or given any effect in construing the provisions hereof.  All exhibits hereto are incorporated hereinby reference.

 

7.                                       Counterparts.  ThisAmendment may be executed in one or more counterparts that, when takentogether, shall constitute one original.

 

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IN WITNESS WHEREOF, Landlordand Tenant have hereunto set their hands as of the date and year first abovewritten, and acknowledge that they possess the requisite authority to enterinto this transaction and to execute this Amendment.

 

LANDLORD:

 

BMR-217TH PLACE LLC,

a Delaware limitedliability company

 

 
| By:    | /s/ Gary A. Kreitzer |   |
|--------|----------------------|--------|
| Name:  | Gary A. Kreitzer     |   |
| Title: | Executive V.P.       |   |

 

 

TENANT:

 

SONUS PHARMACEUTICALS, INC.,

a Delawarecorporation

 

 
| By:    | /s/ Alan Fuhrman |   |
|--------|------------------|--------|
| Name:  | Alan Fuhrman     |   |
| Title: | CFO              |   |

 

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