AMENDMENT NO. 1 TO


PROPERTY
Management and Leasing AGEEMENT


 


This AMENDMENT NO.
1 TO Property Management and Leasing AGREEMENT (this “Amendment”)
is entered into as of June 1, 2014, by and among American Realty Capital Healthcare Trust, Inc., a Maryland corporation (the “Company”),
American Realty Capital Healthcare Trust Operating Partnership, L.P., a Delaware limited partnership (the “Company OP”)
and American Realty Capital Healthcare Properties, LLC, a Delaware limited liability company (the “Manager”).


 


RECITALS


 


A.           WHEREAS,
the Company, the Company OP and the Manager are party to that certain Property Management and Leasing Agreement, dated as of February
18, 2011 (the “Management Agreement”), pursuant to which the real estate properties of the Company and the Company
OP are managed by the Manager.


 


B.           WHEREAS,
the Company and the Company OP have entered into that certain Agreement and Plan of Merger, dated as of June 1, 2014, by and among
Ventas, Inc., a Delaware corporation (“Parent”), Stripe Sub, LLC, a Delaware limited liability company and a
direct wholly owned subsidiary of Parent (“Merger Sub”), Stripe OP, LP, a Delaware limited partnership (the
“OP Merger Sub”), the Company and the Company OP (the “Merger Agreement”), pursuant to which,
among other things, the Company will be merged with and into Merger Sub, with Merger Sub being the surviving entity, and the OP
Merger Sub will be merged with and into the Company OP, with the Company OP being the surviving entity (the “Merger”),
upon the terms and subject to the conditions set forth in the Merger Agreement.


 


C.           WHEREAS,
Section 6.8 of the Merger Agreement requires the Company to terminate certain agreements, including the Management Agreement and
the Manager has agreed to terminate these agreements without notice.


 


D.           WHEREAS,
Section 6.1(a) of the Management Agreement provides that the Management Agreement automatically renews
unless either party provides sixty (60) days’ prior written notice of intention to terminate.


 


E.           WHEREAS,
in connection with the Merger Agreement, the Company entered into an agreement terminating the 2014 Multi-Year Outperformance Agreement
(the “OPP”) between the Company, the OP and American Realty Capital Healthcare Advisor, LLC (the “Advisor”)
(such agreement, the “OPP Amendment”).


 


F.           WHEREAS,
pursuant to the OPP Amendment, any Award LTIP Units (as defined in the OPP) granted to the Advisor under the OPP will be automatically
cancelled and forfeited as of the Closing.


 


G.           WHEREAS,
consistent with Section 6.8 of the Merger Agreement, and in consideration of the Advisor’s forfeiture of the Award LTIP Units,
termination of the Advisory Agreement at Closing without the requisite 60 day notice, termination of the Management Agreement at
Closing without the requisite 60 day notice and the contribution of American Realty Capital Healthcare Special Limited Partnership,
LLC’s (the “SLP”) right to distributions from the OP as evidenced by the Listing Note Agreement between the OP
and the SLP dated April 7, 2014 (the “Listing Note”) to the OP, the OP will issue to the SLP 5,613,374
OP Units (as defined in the Listing Note).


 




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H.           WHEREAS,
pursuant to Section 7.5 of the Management Agreement, the parties hereto desire to amend the Management Agreement to be effective
concurrent with the Closing.


 


AGREEMENT


 


In consideration of
the mutual agreements and covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:


 


1.          Amendment
of the Management Agreement.


 


(a)          Article
I of the Management Agreement is hereby amended by adding the following new definition in appropriate alphabetical order:


 


““Closing”
has the meaning set forth in the Agreement and Plan of Merger, dated as of June 1, 2014, by and among Ventas, Inc. (“Parent”),
a Delaware corporation, Stripe Sub, LLC, a Delaware limited liability company, Stripe OP, LP, a Delaware limited partnership, the
Company and the OP (the “Merger Agreement”).”


 


(b)          Section
6.1of the Management Agreement is hereby amended by deleting the final sentence of Section 6.1 and adding the following section
6(d) to immediately follow section 6(c):


 


“
and (d)          Immediately prior to the Closing, automatically, without notice
and without the need for further action by any party, and contingent on the occurrence of the Closing. Upon termination, the obligations
of the parties hereto shall cease; provided, however, that the Manager shall comply with the provisions hereof applicable in the
event of termination; provided, further, however, that if this Management Agreement terminates pursuant to clauses (b) or (c) of
this Section 6.1, the Owner shall have other remedies as may be available at law or in equity. From and after the termination of
this Management Agreement, and contingent upon the Closing, the Manager hereby automatically, and without the need for further
action by any party, irrevocably and unconditionally releases, waives and relinquishes any rights or claims, whether accrued,
absolute, contingent or otherwise, it may have against the OP, the Company, Parent and any of their
successors or Affiliates (other than claims pursuant to Section 5.4 of this Management Agreement). The provisions of Sections
5.4, 6.1, 6,2, and Article VII of this Management Agreement shall survive any expiration or earlier termination of this Management
Agreement.”


 


2.          Effective
Time. This Amendment is effective as of the date hereof. If the Merger Agreement is terminated in accordance with its terms
without a Closing (as defined in the Merger Agreement), this Amendment shall automatically terminate, with no further action necessary
by any party, and be of no further force or effect.


 


3.          Miscellaneous.


 


(a)          Limited
Effect. Except as otherwise specifically set forth in this Amendment, all other terms and conditions of the Management Agreement
shall remain in full force and effect.


 




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(b)          Entire
Agreement. The Management Agreement and this Amendment supersede all prior agreements between the parties with respect to the
subject matter thereof and constitute a complete and exclusive statement of the terms of the agreement between the parties with
respect to the subject matter thereof. In the event of any conflict between the terms of the Management Agreement and this Amendment,
this Amendment shall control.


 


(c)          Governing
Law. This Amendment will be governed by the internal laws of the State of New York.


 


(d)          Construction.
The parties have participated jointly in the drafting of this Amendment, and each party was represented by counsel in the negotiation
of this Amendment. In the event an ambiguity or question of intent or interpretation arises, this Amendment shall be construed
as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue
of the authorship of any of the provisions of this Amendment. The parties agree that if any provision of this Amendment is found
to be invalid or unenforceable, it will not affect the validity or enforceability of any other provision.


 


(e)          Waiver
of Legal Conflicts. Each of the parties hereto acknowledges and agrees that, at their request, Proskauer Rose LLP acted as
counsel to all such parties in connection with this Amendment. Accordingly, each of the parties agrees to, and does, waive any
conflict of interest which may be deemed to arise as the result of such representation and agrees not to seek to disqualify or
otherwise prevent Proskauer Rose LLP from representing the other parties hereto (or any other clients of Proskauer Rose LLP) in
any matters by reason of its work on, or representation of, such party in connection with this Amendment or its possession of confidential
information relating to such party. Proskauer Rose LLP shall be entitled to rely upon this Section 3(e) as a third party
beneficiary hereof.


 


(f)          Counterparts;
Facsimile. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original and all of
which, taken together, shall constitute one and the same instrument. Original signatures hereto may be delivered by facsimile which
shall be deemed originals.


 


(g)          Definitions.
Capitalized terms used but not defined herein have the meanings ascribed to them in the Management Agreement.


 


(h)          Third
Party Beneficiary; Amendments. Parent is hereby made an express third party beneficiary of this Amendment. The Management Agreement
shall not be further amended or modified, and this Amendment shall not be rescinded, further amended or otherwise modified, without
Parent’s written consent.


 


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IN WITNESS WHEREOF,
the parties have executed and delivered this Amendment as of the date first written above.


 


	 	AMERICAN REALTY CAPITAL HEALTHCARE TRUST, INC.
	 	 	 
	 	By:	/s/ Thomas P. D’Arcy
	 	 	Name: Thomas P. D’Arcy
	 	 	Title:   Chief Executive Officer


 


Signature Page to Amendment No. 1 to


Property Management and Leasing Agreement



 




    	 



    	 



    

 


	 	AMERICAN REALTY CAPITAL HEALTHCARE TRUST OPERATING PARTNERSHIP. L.P.
	 	 	 
	 	By:  AMERICAN REALTY CAPITAL HEALTHCARE TRUST, INC.,
	 	 	Its general partner
	 	 	 
	 	By:	/s/ Thomas P. D’Arcy
	 	 	Name: Thomas P. D’Arcy
	 	 	Title:   Chief Executive Officer


 


Signature Page to Amendment No. 1 to


Property Management and Leasing Agreement


 




    	 



    	 



    

 


	 	AMERICAN REALTY CAPITAL HEALTHCARE PROPERTIES, LLC
	 	 	 
	 	By: 	AMERICAN REALTY CAPITAL HEALTHCARE
	 	 	SPECIAL LIMITED PARTNERSHIP, LLC,
	 	 	Its Member
	 	 	 
	 	By: 	AMERICAN REALTY CAPITAL V, LLC,
	 	 	Its managing member
	 	 	 
	 	By:	/s/ Nicholas S. Schorsch
	 	 	Name: Nicholas S. Schorsch
	 	 	Title:  Authorized Signatory


 


Signature Page to Amendment No. 1 to


Property Management and Leasing Agreement