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200702329 7 mortgaged property. The Incentive Performance Fee is payable, if at all, from Surplus Cash after HUD concludes that (i) all Project expenses have been paid (unless funds for payment are set aside or deferment of payment has been approved by the Secretary), (ii) there are no outstanding sums due under either the First Mortgage or, if applicable, Priority Cash Flow Indebtedness, (iii) the mortgaged property is in acceptable physical condition to HUD, as evidenced by at least a 60 rating from HUD's Real Estate Assessment Center (or some other comparable determination of physical condition as elected by HUD) unless Owner and HUD have mutually agreed to Owner's proposal to cure deficient mortgaged property condition(s), (iv) all HUD audit or management findings are resolved in a manner acceptable to HUD, (v) all monthly Capital Recovery Payments have been received hy the Owner, and (vi) there is no default under the Regulatory Agreement. as modified by this Rider, or any other documents whieh evidence or secure the First Mortgage, the MAHRA Restructuring Loan, or under any other permitted encumbrance on the mortgaged property (all of the foregoing items (i) through (vi) are collectively referred to as "Incentive Performance Fee Conditions"). In the event any of the Incentive Performance Fee Conditions have not been satisfied, the Incentive Performance.Fee for that year shall neither be paid nor accrue. In the event that Incentive Performance Fee Conditions have been satisfied but Surplus Cash is insufficient to pay any fee or a portion of the fee, that portion of the calculated fee unpaid shall not accrue. c. HUD will be deemed to have concluded that the Capital Recovery Payment Conditions and Incentive Performance Fee Conditions have been conditionally satisfied, without prejudice, however, to any of HUD's rights and/or remedies under this Regulatory Agreement or otherwise, or HUD's right to assert and pursue such rights and/or remedies, ifHUD has failed, within 60 days ailer HUO's receipt of the Owner's annual financial statement, to object to the payment of the Capital Recovery Payment and/or Incentive Performance Fee. 8. Release of Regulatory Agreement. The Secretary hereby agrees that, upon the request of the Owner made on or after the date of either the maturity or prepayment of the FHA-insured Section 221 (d)(4) pursuant to Section 223(a)(7) Mortgage and Mortgage Note of even date herewith, the Secretary shall execute a recordable instrument approved by the Secretary for purposes ofreleasing this Regulatory Agreement of record. All costs and expenses relating to the preparation and recording of such release shall be paid by the Owner. 9. Headings. The headings and titles to the sections of this Rider to this Regulatory Agreement are inserted for convenience only and shall not be deemed a part hereof nor affect the construction or interpretation of any provisions hereof. [Signature pages follow.] Rider 1"111\-92465 Oil flrsl 09-15-04