EXHIBIT 10.15
**FIFTH AMENDMENT TO LEASE**
      This Fifth Amendment to Lease (this “Amendment”) is made as of December 20, 2004 by andbetween Hub Properties Trust, a Maryland real estate investment trust (“Landlord”), and BrighamOil & Gas, L.P., a Delaware limited partnership (“Tenant”).
      WHEREAS, Landlord and Tenant are parties to that certain Two Bridgepoint Square LeaseAgreement, dated as of September 20,1996, as amended by a First Amendment to Two BridgepointLease Agreement dated April 11, 1997, a Second Amendment to Two Bridgepoint Lease Agreementdated October 13, 1997, a Commencement Date Declaration dated November 26, 1997, a ThirdAmendment to Two Bridgepoint Lease Agreement dated November, 1998 and a Fourth Amendment toLease dated February 7, 2002 (as so amended, the “Lease”), pursuant to which Tenant hasleased from Landlord certain premises containing a total of 34,327 rentable square feet of spaceon the fourth and fifth floors of the building known as Two Bridgepoint, located at 6300Bridgepoint Parkway, Austin, Travis County, Texas, as more particularly described in the Lease;and
      WHEREAS, the Term of the Lease is scheduled to expire on June 30, 2007; and
      WHEREAS, Landlord and Tenant desire to extend the Term of the Lease upon the terms andconditions hereinafter set forth;
      NOW, THEREFORE, in consideration of the foregoing and for other consideration the mutualreceipt and sufficiency of which are hereby acknowledged, Landlord and Tenant agree that theLease is hereby amended as follows:
      1. Capitalized terms not otherwise defined in this Amendment shall have the meaningattributed to such terms in the Lease.
      2. Section 2.01 of the Lease is amended to provide that the Term of the Lease is extendedfor a period of five (5) years and that the Expiration Date is June 30, 2012.
      3. Section 3.01 of the Lease is amended to provide that the Base Rent for the Premises forthe portion of the Term of the Lease commencing on January 1, 2005 shall be as follows:
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                       Rate per                 square foot          Additional  Total   rentable area  Annual  Monthly  Monthly  Monthly Period net annum  Base Rent  Base Rent  Base Rent  Base Rent 01/01/05 — 12/31/05 $18.50  $635,049.50  $52,920.79  $4,743.48  $57,664.27 01/01/06 — 12/31/06 $19.00  $652,213.00  $54,351.08  $4,743.48  $59,094.56 01/01/07 — 06/30/07 $19.50  $669,376.50  $55,781.37  $4,743.48  $60,524.85 07/01/07 — 12/31/07 $19.50  $669,376.50  $55,781.37  $0  $55,781.37 01/01/08 — 12/31/08 $20.00  $686,540.00  $57,211.67  $0  $57,211.67 01/01/09 — 12/31/09 $20.50  $703,703.50  $58,641.96  $0  $58,641.96 01/01/10 — 12/31/10 $21.00  $720,867.00  $60,072.25  $0  $60,072.25 01/01/11 — 12/31/11 $21.50  $738,030.50  $61,502.54  $0  $61,502.54 01/01/12 — 06/30/12 $22.00  $755,194.00  $62,932.83  $0  $62,932.83 
      4. Section 3.02 of the Lease is amended to provide that the Expense Stop for the portion ofthe Term of the Lease commencing on January 1, 2005 shall be the amount of Operating Expenses ofthe Building for calendar year 2005.
      5. Tenant currently occupies the Premises and agrees to accept the Premises in their “as is”condition as of the date of this Amendment.
      Provided this Lease is then in full force and effect, Landlord will provide Tenant with animprovement allowance (the “Landlord’s Contribution”) as hereinafter provided equal tothe lesser of (i) $343,270 (the “Maximum Contribution”), or (ii) the third-party costspaid or incurred by Tenant to design and construct alterations and improvements to the Premisesafter the date of this Amendment (hereinafter, “Tenant’s Work”), including the fees andreimbursable expenses of Tenant’s independent architectural and engineering professionals; allcontractor charges for labor, materials, general conditions and contractor’s overhead andprofit; all permitting fees; and the fee of any independent construction manager.
      Tenant’s Work and Tenant’s contractors and technicians shall be subject to Landlord’sapproval as provided in Section 6.01 of the Lease and the Rules and Regulations, and Tenant’sWork shall be performed in accordance with the provisions of said Section 6.01, the Rules andRegulations and all other provisions of the Lease applicable thereto.
      Tenant may request payment of Landlord’s Contribution in installments, but not more often than onceper month. Each request for payment of any part of Landlord’s Contribution (hereinafter a“Requisition”) shall be for alterations or improvements that are substantially complete andshall include (i) a reasonably detailed description of the items of Tenant’s Work covered by theRequisition, (ii) a breakdown of the costs of Tenant’s Work covered by the Requisition with copiesof invoices from Tenant’s contractors, architects, suppliers and others, as applicable,substantiating such costs, (iii) executed waivers of mechanic’s or material supplier’s liens (insuch form as Landlord shall reasonably require) waiving, releasing and relinquishing all liens,claims and rights to lien under applicable laws on account of any labor, materials and/or equipmentfurnished by such party through the date of the Requisition (provided that any such waiver may beconditioned upon receipt of the amount requested for such party in the requisition), and (iv) acertification by an appropriate officer of Tenant that Tenant has made full payment of all of thecosts of Tenant’s Work covered by the prior Requisitions paid by Landlord. Landlord shall pay eachRequisition to Tenant within thirty (30) days after Landlord’s receipt of such Requisition with allrequired supporting documentation unless, within such period, Landlord notifies Tenant of itsrejection of all or part of such Requisition as a result of
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Tenant’s failure to comply with the requirements of this Paragraph 5 specifying the reasonstherefore, and, if Landlord so notifies Tenant, then upon reasonable satisfaction of suchobjections, Landlord shall pay any amount withheld within ten (10) days.
      Notwithstanding any provision of this Paragraph 5 to the contrary, Landlord shall have noobligation to pay any Requisition submitted later than December 31, 2008 or at any time duringwhich Tenant shall be in default of any of its obligations under the Lease.
      6. Section 2.03 and Exhibit E of the Lease are deleted. Said Section 2.03 is replaced withthe following:
        So long as this Lease is still in full force and effect, and Brigham Oil & Gas,L.P. (or any successor by merger or reorganization, or any parent or subsidiary ofsuch Tenant) shall actually occupy the entire Premises except for any portion thereofthat is then occupied by Vision Flow, Inc. or Media Excel, Inc. pursuant to either theSublease dated August 1, 2003 between Tenant and Vision Flow, Inc. and Media Excel,Inc., or the Sublease dated November 19, 2004 between Tenant and Media Excel, Inc.(the “Subleases”) (or Landlord, in its sole discretion, at any time shallelect to waive such conditions), Tenant shall have the right to extend the term ofthis Lease for one (1) additional period (the “Extended Term”) of five (5)years. The Extended Term shall commence on July 1, 2012 and shall expire on June 30,2017. All of the terms, covenants and provisions of this Lease applicable immediatelyprior to the commencement of the Extended Term shall apply to each the Extended Termexcept that (i) the Base Rent for the Extended Term shall be the Market Rate (ashereinafter defined) for the Premises determined as of the commencement of suchExtended Term, as designated by Landlord by notice to Tenant (“Landlord’sNotice”), but subject to Tenant’s right to dispute as hereinafter provided, and(ii) Tenant shall have no further right to extend the term of this Lease beyond theExtended Term.
        If Tenant shall elect to exercise the aforesaid option, it shall do so by givingLandlord notice of its election ( the “Option Notice”) not later than oneyear, nor sooner than twenty-four (24) months, prior to the commencement of theExtended Term. The Option Notice shall request Landlord’s determination of Market Ratewithin thirty (30) days and shall apply to the entire Premises and shall beunconditional and irrevocable by Tenant. If Tenant fails to give the Option Notice toLandlord, the Term of this Lease shall automatically terminate no later than the lastday of the current Term, and Tenant shall have no further option to extend the Term ofthis Lease, it being agreed that time is of the essence with respect to the giving ofthe Option Notice. If Tenant shall extend the Term hereof pursuant to the provisionsof this Section, such extension shall be automatically effected without the executionof any additional documents, but Landlord and Tenant shall, at the request of either,execute an amendment to this Lease confirming the Base Rent for the Extended Term.
        As used. in this Section, “Market Rate” shall mean a fair market fixedrent (which may include periodic adjustments) for the Premises for the Extended Termcommensurate with the fixed annual rents then being charged in the Building and incomparable office buildings located in the vicinity of the Building for comparablepremises under leases for a similar term, taking into account all relevant factors(determined as set forth below).
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        Landlord shall give Tenant Landlord’s Notice not later than thirty (30) daysafter Tenant gives an Option Notice. If Tenant disagrees with the Market Ratedesignated in Landlord’s Notice, Tenant shall notify Landlord of such disagreement andof Tenant’s designation of the Market Rate by notice given not later than fifteen (15)days after the giving of Landlord’s Notice, and if Tenant fails to so notify Landlordthen the Market Rate shall be as designated in Landlord’s Notice, and such designationshall be final and conclusive. If Tenant notifies Landlord that it disagrees withLandlord’s designation of the Market Rate and the parties cannot agree upon the MarketRate by the date that is sixty (60) days following Landlord’s Notice, then either (i)Tenant may withdraw and cancel its Option Notice by notice given to Landlord not laterthan five (5) days after the expiration of such sixty (60) day period (time being ofthe essence), in which case the Option Notice shall be null, void and of no effect andthe Term of this Lease shall expire as if the Option Notice had never been given, or(ii) the Market Rate shall be submitted to appraisal as follows: Within fifteen (15)days after the expiration of such sixty (60) day period, Landlord and Tenant shalleach give notice to the other specifying the name and address of the appraiser eachhas chosen; provided, however, if only one appraiser shall be chosen whose name andaddress shall have been given to the other party within such fifteen (15) day periodand who shall have the qualifications hereinafter set forth, that sole appraiser shalldetermine the Market Rate for the Extend Term as herein provided. The two appraisersso chosen shall meet within ten (10) days after the second appraiser is appointed andif, within twenty (20) days after the second appraiser is appointed, the twoappraisers shall not agree upon a determination of the Market Rate in accordance withthe following provisions of this Section, they shall together appoint a thirdappraiser.
        If said two appraisers cannot agree upon the appointment of a third appraiserwithin ten (10) days after the expiration of such twenty (20) day period, then either*party,*on behalf of both and on notice to the other, may request such appointment bythe nearest office of the American Arbitration Association (or any successororganization) in accordance with its then prevailing rules. In the event that allthree appraisers cannot agree upon such Market Rate within ten (10) days after thethird appraiser shall have been selected, then each appraiser shall submit his or herdesignation of such Market Rate to the other two appraisers in writing; and MarketRate shall be determined by calculating the average of the two numerically closest(or, if the values are equidistant, all three) values so determined.
        Each of the appraisers selected as herein provided shall be a licensed commercialreal estate broker who specializes in leasing office space and who has not less thanten (10) years’ experience representing landlords and/or tenants in the leasing ofpremises comparable to the Premises at buildings comparable to the Building in Austin,Texas. Each party shall pay the fees and expenses of the appraiser it has selected andthe fees of its own counsel. Each party shall pay one half (1/2) of the fees andexpenses of the third appraiser (or the sole appraiser, if applicable) and all otherexpenses of the appraisal. The decision and award of the appraiser(s) shall be inwriting and shall be final and conclusive on all parties, and counterpart copiesthereof shall be delivered to both Landlord and Tenant. Judgment upon the award of theappraiser(s) may be entered in any court of competent jurisdiction.
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        Both appraisers or a majority of them (or the sole appraiser, if applicable)shall determine the Market Rate of the Premises for the Extended Term and render adecision and award as to their determination to both Landlord and Tenant (a) withintwenty (20) days after the appointment of the second appraiser, (b) within twenty (20)days after the appointment of the third appraiser or (c) within fifteen (15) daysafter the appointment of the sole appraiser, as the case may be. In rendering suchdecision and award, the appraiser(s) shall assume that, subject to the provisions ofSection 8.01, in the event the Premises are destroyed or damaged by fire or othercasualty prior to the commencement of the applicable Extended Term, they have beenfully restored. The appraisers shall also take into consideration any increases orpossible increases in rent then being included in leases for comparable space in theBuilding or in comparable buildings based on changes in price indices, including costof living, or other similar increases or periodic market rental adjustments. Inrendering such decision and award, the appraiser(s) shall consider the fair marketannual rents (as the same may increase over time) then being charged for comparablespace in comparable buildings in the greater Austin area, but shall not modify theprovisions of this Lease.
        If the dispute between the parties as to the Market Rate has not been resolvedbefore the commencement of the Extended Term, then Tenant shall pay the Base Rentunder the Lease based upon the Market Rate designated by Landlord in Landlord’s Noticeuntil either the agreement of the parties as to the Market Rate, or the decision ofthe appraiser(s), as the case may be, at which time Tenant shall pay any underpaymentof the Base Rent to Landlord, or Landlord shall refund any overpayment of the BaseRent to Tenant.
        Landlord and Tenant hereby waive the right to an evidentiary hearing before theappraiser(s) and agree that the appraisal shall not be an arbitration nor be subjectto state or federal law relating to arbitrations.
      7. Sections 2.04 and Exhibit F of the Lease are deleted. Said Section 2.04 is replaced withthe following.
        So long as (i) this Lease is still in full force and effect, (ii) there thenexists no Default of Tenant, and (iii) Brigham Oil and Gas, L.P. (or any successor bymerger or reorganization, or any subsidiary or parent) shall actually occupy theentire Premises except for any portion thereof that is then occupied by Vision Flow,Inc. or Media Excel, Inc. pursuant either of the Subleases (or Landlord, in its solediscretion, at any time shall elect to waive such conditions), then if at any timeafter January 1, 2005, Suite 400 and/or Suite 420 of the Building, which aresubstantially as outlined on Exhibit A-4 (collectively, the “ROFO Space”)shall become available for lease by Landlord, Landlord shall notify Tenant of theSuite(s) so available (the “OfferedSpace”), together with the rentalrate and other terms and conditions (collectively, the “Terms”) under which ingood faith Landlord intends to offer the Offered Space to third parties (which mayinclude a term whose expiration date is not co-terminous with the term applicable tothe space then constituting the Premises demised hereunder) and the date on which theOffered Space is expected to be available, and Tenant may, by giving notice toLandlord within five (5) business days (i.e., weekdays that are not normal businessholidays as defined in Section 5.01 of the Lease) after receipt of such notice,irrevocably elect to lease all, but not less than all, of the
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Offered Space on the Terms. If Tenant shall have so elected to lease the OfferedSpace, it shall enter into an amendment to this Lease, in a commercially reasonableform prepared by Landlord, within ten (10) business days after it shall have receivedthe same from Landlord, confirming the lease of the Offered Space to Tenant on theTerms. If Tenant shall not elect to lease the Offered Space within the aforesaid five(5) business-day period, then Landlord shall thereafter for the next twelve (12) monthperiod (after which if Landlord shall still desire to lease such space the firstsentence of this Section 2.04 shall again apply) be free to lease any or all of suchOffered Space to a third party or parties from time to time on such terms andconditions as it may deem appropriate (unless the fixed rent under such lease, takinginto account any rent concessions, shall be at least ten percent (10%) less than thatincluded in the Terms, in which case before Landlord may enter into such a leaseLandlord shall again comply with the provisions set forth above), it being agreed thattime is of the essence with respect to the exercise of Tenant’s rights under thisparagraph.
        Notwithstanding any provision or exhibit to the Lease to the contrary, Landlordand Tenant agree that (i) the portion of the Premises located on the fourth floor ofthe Building designated as Suite 410 in Exhibit A-4 is deemed to contain 14,176rentable square feet of space, (ii) Suite 400 is deemed to contain 2,967 rentablesquare feet of space, (iii) Suite 420 is deemed to contain 2,731 rentable square feetof space, and (iv) in the event that the Premises shall, at any time, include all ofSuites 410, Suite 400 and 420, then the portion of the Premises located on the fourthfloor of the Building shall be deemed to contain a total of 19,514 rentable squarefeet of space.
        The provisions of this Section shall not apply, and space shall not be deemed“available for lease” hereunder if Landlord shall intend to renew or extend the leasewith (or grant a new lease to) the entity (or any party affiliated with such entity)then occupying such space.
      8. Section 2.05 and Exhibit G of the Lease are deleted.
      9. Section 2.06 of the Lease is deleted and replaced with the following;
        Provided that Tenant is not in default beyond applicable cure periods at the timeit gives Landlord notice exercising the option herein granted (or Landlord in its solediscretion at any time shall elect to waive such condition), then if Tenant and all ofits subsidiaries and all affiliates (but not individuals) of Tenant shall intend tocease to conduct business in Travis County Texas and in all adjacent counties by theEarly Termination Date (hereinafter defined) for a valid business purpose and not forthe principal purpose of exercising Tenant’s termination rights hereunder, Tenant mayterminate the Term of this Lease by giving notice of its election to terminate toLandlord accompanied by a certification from Tenant’s Chief Financial Officer of theforegoing intention and payment of the Termination Fee (as hereinafter defined). Inthe event Tenant gives such notice, the Term of the Lease shall terminate on the date(the “Early Termination Date”) that is nine (9) months after the date Landlordreceives such notice. Tenant shall pay to Landlord a termination fee (the“Termination Fee”), contemporaneously with the giving of such notice andcertification, equal to the sum of the following:
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        (a) the unamortized portion (as of the Early Termination Date) of (i) theMaximum Contribution (as defined in paragraph 5 of the Fifth Amendment to Lease),(ii) the $144,173 brokerage commission incurred by Landlord in connection with thisAmendment, and (iii) the actual, third-party legal fees paid by Landlord inconnection with this Amendment (but in no event more than $6,000), such amounts to beamortized over the portion of the Term commencing January 1, 2005 and expiring June30, 2012, with interest at the rate of 10% per annum; plus
        (b) with respect to any additional space in the Building leased by Tenant afterthe date of the Fifth Amendment to Lease, the unamortized portion (as of the EarlyTermination Date) of the sum of the following costs and expenses with respect to suchadditional space: (i) the value of any free or abated Rent, (ii) any contributionmade by Landlord to Tenant toward the cost of designing or constructing leaseholdimprovements and/or for moving or other costs incurred by Tenant and the cost of anyleasehold improvements performed by Landlord for Tenant, (iii) any brokeragecommissions paid by Landlord in connection with the leasing of such additional space,and (iv) the legal fees paid by Landlord in connection with the leasing of suchadditional space, such amounts to be amortized over the Term of the Lease applicableto the additional space with interest at the rate of 10% per annum.
        Landlord may, in its sole discretion, elect to treat any notice of terminationwhich is not accompanied by either or both the certification or Termination Fee asnull and void or as effective to terminate the Term as of the date nine (9) monthsafter Landlord’s receipt thereof (while not discharging Tenant from its obligation topay the Termination Fee).
      10. Tenant warrants and represents that it has dealt with no broker in connection with theexecution of this Amendment other than The Staubach Company of Central Texas, LLC, whosecommissions will be paid by Landlord, and Tenant agrees to indemnify and hold Landlord harmlessfrom and against any and all brokerage claims from any other brokers with whom Tenant may havedealt in connection with this Amendment.
      11. Tenant represents that it has not assigned the Lease and that the Premises are notsubject to any subleases except for the Subleases.
      12. Exhibit A-4 to this Amendment is added to the Lease as Exhibit A-4 of the Lease. ExhibitA-4 replaces all prior floor plans of the fourth floor of the Building.
      13. As amended hereby, the Lease is hereby ratified and confirmed.
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      IN WITNESS WHEREOF, the parties have hereto executed this Amendment as of the date firstabove appearing.      LANDLORD: