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-14- 200702332 all HUD audit or management findings are resolved in a manner acceptable to HUD, (v) all monthly Capital Recovery Payments have been received by the Owner, and (vi) there is no default under the Regulatory Agreement, as modified by this Rider, or any other documents which 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 portion ofthe 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 after HUD'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 Regulatory Agreement. The Secretary hereby agrees that, upon the request ofthe Owner made on or after the date of either the maturity or prepayment of the MAHRA Restructuring Loan made of even date herewith, evidenced and/or secured by a Mortgage Restructuring Note and a Mortgage Restructuring Mortgage and/or, if applicable, the Contingent Repayment Note and a Contingent Repayment Mortgage, the Secretary shall execute a recordable instrument approved by the Secretary for purposes of releasing 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 OWNER: Holiday Garden Townhouses II, A Limited Partnership a Nebraska limited partnership ~Ql~) Wi eS5' - By: J11I ~~ ftI Jn1P~f Name: William W. Marshall, III Title: General Partner Date: '1n0J..-.<.h ;).0>., ,2007 auD-92465 (7-77)