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was recorded on August 18, 2008 as Instrument No. 0200807155. The 1999 Declaration, the First Amendment, the Second Amendment and the Third Amendment were amended by a certain Fourth Amendment to Declaration of Restrictions and Grant of Easements dated August 29, 2011 (the "Fourth Amendment "). The Fourth Amendment was recorded on August 30, 2011 as Instrument No. 0201106471. The 1999 Declaration, the First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment and this Fifth Amendment are hereinafter collectively referred to as the "Declaration "). B. Allen Webb Road LLC is the owner of Parcel 28, legally described as Lot 11, Meadowlark West Fourth Subdivision, a subdivision, as surveyed, platted and recorded in Hall County, Nebraska ( "Lot 11 "), as depicted on the Site Plan attached hereto as Exhibit "A ". D. The Property Owners are the Owners of the Parcels containing in the aggregate at least ninety percent (90 %) of the total square footage of Building Area in the Shopping Center as required by Section 8.5 of the 1999 Declaration for the purpose of modifying the Declaration. below. C. William D. Raile or his assigns is about to purchase Lot 11. Agreement 201501810 E. The parties desire to make certain modifications to the Declaration as set forth Now, therefore, in consideration of the foregoing Recitals which are incorporated herein by this reference, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Recitals. Except as set forth herein, the recitals are incorporated herein as if set forth in full. 2. Capitalized Terms. All capitalized terms that are not defined in this Fifth Amendment shall have the meanings respectively given to them in the 1999 Declaration, the First Amendment, the Second Amendment, the Third Amendment and the Fourth Amendment. 3. Conflict or Inconsistency. In the event of any conflict or inconsistency between the provisions of this Fifth Amendment and the 1999 Declaration, the First Amendment, the Second Amendment, the Third Amendment or the Fourth Amendment, the provisions of this Fifth Amendment shall control. 4. Use Restrictions. Notwithstanding the provisions of Article 5, Section 5.2(a) of the Declaration, a gym, health spa or fitness center shall be a permitted use with respect to Lot 11, and such use shall not be included within the definition of an "entertainment or recreational facility" as it relates to Lot 11. 2