exhibit1038executionvers






Exhibit 10.38                                                           EXECUTION VERSION                             PHYSICIANS  REALTY   L.P.,                                    as Issuer                          PHYSICIANS   REALTY   TRUST,                                as Parent Guarantor              $25,000,000 4.09% Senior Notes, Series A, due August 11, 2025              $25,000,000 4.18% Senior Notes, Series B, due August 11, 2026              $25,000,000 4.24% Senior Notes, Series C, due August 11, 2027                       ___________________________________                                 FIRST AMENDMENT                            Dated as of November 19, 2018                                      to the                      NOTE PURCHASE AND GUARANTEE AGREEMENT                             Dated as of August 11, 2016                      ___________________________________   Execution Version First Amend. to August 2016 NPA 4851-4859-2243 v4 4277463 





 






        FIRST AMENDMENT TO THE NOTE PURCHASE AND  GUARANTEE AGREEMENT         THIS FIRST AMENDMENT,  dated  as  of  November  19,  2018  (the  or  this  “First  Amendment”), to the Note Purchase and Guarantee Agreement, dated as of August 11, 2016, is  among PHYSICIANS REALTY L.P., a Delaware limited partnership (the “Company”), PHYSICIANS  REALTY TRUST, a Maryland real estate investment trust (the “Parent Guarantor” and, together  with  the Issuer,  the “Obligors”)  and  each  of  the  institutions which  is  a  signatory  to this  First  Amendment (collectively, the “Noteholders”).                                    R E C I T A L S:        A.   The  Obligors  and  each  of  the  Noteholders  have  heretofore  entered  into  the  Note Purchase  and  Guarantee  Agreement,  dated  as  of  August  11,  2016  (the  “Note  Purchase Agreement”),  pursuant  to  which  the  Company  heretofore  issued  (i) $25,000,000  aggregate principal  amount  of  its  4.09%  Senior  Notes,  Series A,  due  August  11,  2025  (the  “Series  A Notes”), (ii) $25,000,000 aggregate principal  amount of  its 4.18% Senior Notes,  Series B, due August 11, 2026 (the “Series B Notes”) and (iii) $25,000,000 aggregate principal amount of its 4.24% Senior Notes, Series C, due August 11, 2027 (the “Series C Notes”, collectively with the Series A Notes and the Series B Notes, the “Notes”).  The Noteholders are the holders of greater than 50% of the outstanding principal amount of the Notes.        B.   The  Obligors  and  the  Noteholders  now  desire  to  amend  the  Note  Purchase Agreement in the respects, but only in the respects hereinafter set forth.        C.   Capitalized terms used herein shall have the respective meanings ascribed thereto in the Note Purchase Agreement unless herein defined or the context shall otherwise require.        D.   All requirements of law have been fully complied with and all other acts and things necessary to make this First Amendment a valid, legal and binding instrument according to its terms for the purposes herein expressed have been done or performed.        NOW, THEREFORE, upon the full and complete satisfaction of the conditions precedent to  the effectiveness of this First Amendment set forth in Section 3.1 hereof, and in consideration of  good and valuable consideration the receipt and sufficiency of which  is hereby acknowledged,  the Obligors and the Noteholders do hereby agree as follows:   SECTION 1.    AMENDMENTS.       Section 1.1.  Clause (a) and (b) of Section 9.1 of the Note Purchase Agreement shall be  and are hereby amended in their entirety to read as follows:                   (a)     Quarterly  Financial  Statements  for  the  Parent              Guarantor  and  its  Subsidiaries.  As  soon  as  available  and  in  no              event later than the earlier of (i) the date that is forty-five (45) days              after the end of each Fiscal Quarter of each Fiscal Year (excluding                                         -1- 





 






Exhibit 10.38              the fourth Fiscal Quarter), or (ii) the date that is ten (10) days after             the  filing  of  Parent  Guarantor’s  Quarterly  Report  on  Form  10-Q             (“Form  10-Q”)  with  the  SEC  for  such  Fiscal  Quarter,  the             consolidated  and  consolidating  balance  sheets  of  the  Parent             Guarantor and its Subsidiaries as at the end of such Fiscal Quarter             and  the  related  consolidated  and  consolidating  statements  of             income,  stockholders’  equity  and  cash  flows  of  the  Parent             Guarantor and its Subsidiaries for such Fiscal Quarter and for the             period  from  the  beginning  of  the  then  current  Fiscal  Year  to  the             end  of  such  Fiscal  Quarter,  setting  forth  in  each  case  in             comparative form the corresponding figures for the corresponding             periods  of  the  previous  Fiscal  Year,  all  in  reasonable  detail,             together with a Financial Officer Certification with respect thereto;                  (b)     Audited Annual Financial Statements for the Parent             Guarantor  and  its  Subsidiaries.  As  soon  as  available  and  in  no             event later than the earlier of (x) the date that is ninety (90) days             after the  end  of  each  Fiscal Year,  or (y)  the  date that is ten  (10)             days after the filing of Parent Guarantor’s Annual Report on Form             10-K (the “Form 10-K”) with the SEC for such Fiscal Year, (i) the             consolidated  and  consolidating  balance  sheets  of  the  Parent             Guarantor and its Subsidiaries as at the end of such Fiscal Year and             the  related  consolidated  and  consolidating  statements  of  income,             stockholders’ equity and cash flows of the Parent Guarantor and its             Subsidiaries  for  such  Fiscal  Year,  setting  forth  in  each  case  in             comparative form the corresponding figures for the previous Fiscal             Year,  in  reasonable  detail,  together  with  a  Financial  Officer             Certification  with  respect  thereto;  and  (ii)  with  respect  to  such             consolidated  financial  statements  a  report  thereon  of  Ernst  &             Young  LLP  or  other  independent  certified  public  accountants  of             recognized  national  standing  selected  by  the  Parent  Guarantor,             which report shall be unqualified as to going concern and scope of             audit,  and  shall  state  that  such  consolidated  financial  statements             fairly  present,  in  all  material  respects,  the  consolidated  financial             position of the Parent Guarantor and its Subsidiaries as at the dates             indicated and the results of their operations and their cash flows for             the periods indicated in conformity with GAAP applied on a basis             consistent with prior years (except as otherwise disclosed in  such             financial statements) and that the examination by such accountants             in connection with such consolidated financial statements has been             made in accordance with generally accepted auditing standards);       Section 1.2.  Clause (c)(ii) of Section 9.1 of the Note Purchase Agreement shall be and is hereby amended in its entirety to read as follows:                                        -2- 





 






Exhibit 10.38                  ii.    Together  with  each  delivery  of  the  financial             statements pursuant to clauses (a) and (b) of Section 9.1, (A) a duly             completed Borrowing Base Certificate, and (B) if requested by the             Required Holders, quarterly operating statements (detailing current             quarter  and  same period prior  year,  year  to  date, and  trailing 12-             month profit and loss summary), occupancy information, a rent roll             (including  rental  rate  and  lease  expiration  detail)  and  other             information required to calculate Net Operating Income for each of             the then-existing Unencumbered Pool Properties;      Section 1.3.   Section  10.6(j)  of  the  Note  Purchase  Agreement  shall  be  and  is  hereby amended in its entirety to read as follows:                    (j)  subject to the following limitations, Investments in             the  following  asset  classes:  (i) Capital  Stock,  the  issuer  with             respect  to  which  is  an  Unconsolidated  Affiliate,  and  mezzanine             loans made to, or similar Investments in, any Person (other than an             Affiliate  of  an  Obligor)  that  owns,  directly  or  indirectly,  one  or             more  Real  Estate  Assets  that  constitute  Healthcare  Facilities             (“Class  I”),  (ii) Construction-In-Process  (“Class  II”),            (iii) Unimproved  Land  (“Class  III”),  and  (iv) Unencumbered            Mortgage Receivables (“Class IV;” each of Class I, Class II, Class            III and Class IV may be referred to herein individually as a “Class”            and  collectively  as  “Classes”): provided,  Investments  in  each  of            the foregoing asset Classes shall be permitted hereunder only to the            extent that the aggregate amount of all Investments in such Class            (based on the GAAP book value of each such Investment at such            time  of  determination)  does  not  exceed  the  corresponding            percentage of Total Asset Value for such Class set forth below:         Class                Investment Type                  Maximum                                                              Percentage           I   Unconsolidated Affiliates (including any Investments 20.0%              in Unconsolidated Affiliates permitted under clause              (b) above) and mezzanine loans and similar              Investments          II   Construction-In-Process                           20.0%          III  Unimproved Land                                   5.0%          IV   Unencumbered Mortgage Receivables                 10.0%                                        -3- 





 






Exhibit 10.38              In addition  to the  foregoing  limitations on permitted Investments             under  this  clause  (j),  at  no time  shall  the  aggregate  GAAP  book             value of the Investments in Classes I, II, III and IV above exceed             twenty-five  percent  (25.0%)  of  Total  Asset  Value.             Notwithstanding  anything  contained  herein  to  the  contrary,  any             failure of  the Issuer  to meet  the foregoing  Investment  limitations             shall not constitute an Event of Default hereunder, but shall result             in  the  excess  value  of  such  Investment  being  excluded  when             calculating Gross Asset Value hereunder.              Notwithstanding  the  foregoing,  (x)  in  no  event  shall  an  Obligor             make any  Investment  under  this Section  10.6  which  results  in  or             facilitates  in  any  manner  any  Restricted  Payment  not  otherwise             permitted under the terms of Section 10.4; and (y) in no event shall             the Parent Guarantor be permitted to make any equity Investment             in any Person other than the Issuer.      Section 1.4.  Section  10.8(i)  of  the  Note  Purchase  Agreement  shall  be  and  is  hereby amended in its entirety to read as follows:                    (i)  Distribution  Limitation.   Each  Obligor  and  each             other Subsidiary shall be permitted to make Restricted Payments to             the  Issuer  and  the  Issuer  shall  be  permitted  to  make  Restricted             Payments  to  Parent  Guarantor  (and  the  Issuer  may  make  any             corresponding  Restricted Payments to the  holders (other  than  the             Parent  Guarantor)  of  common  and  preferred  limited  partnership             units  in  the  Issuer,  based  on  such  holders’  individual  percentage             ownership  of  Capital  Stock  in  the  Issuer  or  otherwise  in             accordance with the Issuer’s Organizational Documents); provided             that  if  an  Event  of  Default  shall  be  in  existence,  such  Restricted             Payments shall be limited to the amount necessary, in each case to             permit  the  Parent  Guarantor  to  make  Restricted  Payments  to the             holders of the Capital Stock in the Parent Guarantor to the extent             necessary  to  maintain  Parent  Guarantor’s  status  as  a  REIT  or  to             enable the Parent Guarantor to avoid payment of any Tax for any             calendar  year  that  could  be  avoided  by  reason  of  a  Restricted             Payment  by Parent  Guarantor to the holders of  its  Capital  Stock,             with such Restricted Payments by the Parent Guarantor to be made             as and when reasonably determined by Parent Guarantor, whether             during  or  after  the  end  of  the  relevant  calendar  year,  and  in  all             cases as set forth in a certification to the holders of the Notes from             the chief financial officer, principal accounting officer, treasurer or             controller  of  the  Parent  Guarantor; provided,  further,  that  in  no             event shall the Consolidated Parties make any Restricted Payments             to  the  holders  of  their  Capital  Stock  (other  than  any  Restricted             Payments  to  such  holders  of  Capital  Stock  which  are  also                                       -4- 





 






Exhibit 10.38              Obligors) if or to the extent that a Default or Event of Default then             exists under Sections 11(a), (f) or (g) or would result from same or             if the  Obligations  shall  have  been accelerated under  Section 12.1             as a result of the occurrence of an Event of Default.      Section 1.5.  Section  10.13(d)  of  the  Note  Purchase  Agreement  shall  be  and  is  hereby amended in its entirety to read as follows:                  (d)    except in connection with a repayment, refinancing             or refunding permitted hereunder, make any voluntary prepayment,             redemption,  defeasance  or  acquisition  for  value  of  (including  by             way of depositing money or securities with the trustee with respect             thereto before due for the purpose of paying when due), or refund,             refinance or exchange of, any Funded Debt (other than as set forth             in Section 5.16, the Indebtedness under the Financing Agreements,             intercompany Indebtedness permitted hereunder and Indebtedness             permitted  under  Section 10.1(b),  Section  10.1(c), Section  10.1(d)             or  Section  10.1(k)); provided,  this  Section  10.13(d)  shall  not             prohibit the prepayment or payment at maturity by any Subsidiary             of any Specified CMBS Indebtedness if, on or prior to the date of             any  such  payment,  (x)  the  Real  Estate  Asset  subject  to  and             securing such Specified CMBS Indebtedness is, or shall have been,             proposed for inclusion  in the Borrowing Base  in  accordance with             Section  10.17,  and  (y) such  Subsidiary  becomes  a  Guarantor  in             accordance with Section 9.15.      Section 1.6.  Section  11(b)  of  the  Note  Purchase  Agreement  shall  be  and  is  hereby amended in its entirety to read as follows:                    (b)  Default  in  Other  Agreements.   (i)  Failure  of  an             Obligor or any of its Subsidiaries to pay when due any principal of             or  interest  on  or  any  other  amount  payable  in  respect  of  one  or             more items of (x) Recourse Indebtedness (other than Indebtedness             referred to in Section 10.1(a)) in an aggregate principal amount of             $25,000,000 or more, in each case beyond the grace or cure period,             if any, provided therefor or (y) Non-Recourse Indebtedness  in an             aggregate principal amount of $25,000,000 or more, in  each case             beyond the grace or cure period, if any, provided therefor; or (ii)             breach or default by an Obligor with respect to any other term of             (1)  one  (1)  or  more  items  of  Indebtedness  in  the  aggregate             principal  amounts  referred  to  in  clauses  (i)(x)  or  (i)(y)  above,  or             (2) any  loan  agreement,  mortgage,  indenture  or  other  agreement             relating  to  such  item(s)  of  Indebtedness,  in  each  case  beyond  the             grace or cure period, if any, provided therefor, if the effect of such             breach or default is to cause, or to permit the holder or holders of             that Indebtedness (or a trustee on behalf of such holder or holders),                                       -5- 





 






 Exhibit 10.38               to  cause,  that  Indebtedness  to  become  or  be  declared  due  and              payable  (or  subject  to  a  compulsory  repurchase  or  redeemable)              prior to its stated maturity or the stated maturity of any underlying              obligation, as the case may be; or       Section 1.7.  Clause (a) of the definition of  “Change of Control”  in Schedule B of the Note Purchase Agreement shall be and is hereby amended in its entirety to read as follows:                   (a)      any  “person” or “group” (as  such terms  are used  in             Sections 13(d) and 14(d) of the Exchange Act, but excluding any             employee benefit plan of such person or  its subsidiaries, and  any             person  or  entity  acting  in  its  capacity  as  trustee,  agent  or  other             fiduciary  or  administrator  of  any  such  plan)  becomes  the             “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the             Exchange Act), directly or indirectly, of thirty-five percent (35%)             or  more  of  the  Capital  Stock  of  the  Parent  Guarantor  entitled  to             vote for members of the board of directors or equivalent governing             body of the Parent Guarantor on a fully diluted basis; or       Section 1.8.  Clause (a) of the definition of “Material Credit Facility” in Schedule B of the Note Purchase Agreement shall be and is hereby amended in its entirety to read as follows:                   (a)     the  Second  Amended  and  Restated  Credit             Agreement,  dated  as  of  August  7,  2018,  among  the  Issuer,  the             Parent  Guarantor,  KeyBank   National  Association,  as             administrative agent, KeyBanc Capital Markets, Inc., BMO Capital             Markets  and  Citizens  Bank,  N.A.,  and  the  lenders  party  thereto,             including  any  renewals,  extensions,  amendments,  supplements,             restatements, replacements or refinancing thereof (collectively, the             “Existing Credit Facility”);       Section 1.9.   Each  of  the  following  definitions  in  Schedule B  of  the  Note  Purchase Agreement  shall  be  and are  hereby  amended  by  deleting  such  definitions  in  their entirety  and substituting the following definitions to read as follows:                    “Authorized  Officer”  means,  as  applied  to  any  Person,             any individual holding the position of chairman of the board (if an             officer),  chief  executive  officer,  president  or  one  of  its  vice             presidents  (or  the  equivalent  thereof),  chief  financial  officer,             treasurer or assistant treasurer of such Person or its Controlling or             parent entity and, solely for purposes of making the certifications             required under Section 4.3(c), any secretary or assistant secretary.                    “Excluded  Subsidiary”  means  (a)  any  Subsidiary  of  the             Obligors  (i)  holding  title  to  assets  which  are  or  are  to  become             collateral  for  any  Secured  Indebtedness  of  such  Subsidiary;  (ii)                                        -6- 





 






Exhibit 10.38              which is prohibited from guarantying the Indebtedness of any other             Person  pursuant  to  (A)  any  document,  instrument  or  agreement             evidencing such Secured Indebtedness or (B) a provision of such             Subsidiary’s  organizational  documents  which  provision  was             included  in  such  Subsidiary’s  organizational  documents  as  a             condition to the extension of such Secured Indebtedness; and (iii)             the  liabilities  for  which  none  of  the  Guarantors  (other  than  the             Parent Guarantor), any of their respective Subsidiaries (other than             another  Excluded  Subsidiary)  has  any  contingent  liability  or  is             otherwise  liable  with  respect  to  any  of  the  Indebtedness  of  such             Subsidiary,  except  for  customary  exceptions  for  fraud,             misapplication  of  funds,  environmental  indemnities,  violation  of             “special  purpose  entity”  covenants,  bankruptcy,  insolvency,             receivership  or  other  similar  events  and  other  similar  exceptions             from  non-recourse  liability,  or  (b)  any  Subsidiary  which  is  not  a             Wholly-Owned  Subsidiary  and  with  respect  to  which  the  Parent             Guarantor  or  the  Issuer,  as  applicable,  does  not  have  sufficient             voting power  (and  is  unable,  after  good  faith  efforts to  do  so, to             cause any necessary non-affiliated equity holders to agree) to cause             such  entity  to  become  a  “Guarantor”  or,  notwithstanding  such             voting  power,  the  interests  of  such  non-affiliated  holders  has             material  economic value  in the reasonable judgment of the Issuer             that  would  be  impaired  by  such  Subsidiary  becoming  a             “Guarantor.”                    “Material  Lease” means  any  Tenant  Lease  which,             individually  or  when  aggregated  with  all  other  leases  at  such             Unencumbered  Pool  Property  with  the  same  Tenant  or  any             Affiliate  of  such  Tenant,  demises  50%  or  more  of  such             Unencumbered Pool Property’s gross leasable area.  For purposes             of  determining  whether  a  Tenant  Lease  which  is  a  “pad”  or             “ground  lease”  is a  Material  Lease under  the  foregoing  sentence,             the  gross  leasable  area of any  building  to be used  by  the  Tenant             shall  be  considered  and  not  the  surface  land  area  to  be  leased             pursuant to such Tenant Lease.                    “Net  Operating  Income”  or  “NOI”  means,  for  any  Real             Estate Asset and for a given period, an amount equal to the sum of             (a)  the  gross  revenues  for  such  Real  Estate  Asset  for  such  fiscal             period received in the ordinary course of business (excluding pre-             paid rents and revenues and security deposits except to the extent             applied in satisfaction of Tenants’ obligations for rent), minus (b)             all  operating  expenses  incurred  with  respect  to  such  Real  Estate             Asset  for  such  fiscal  period  (including  an  appropriate  accrual  for             property  taxes,  insurance  and  other  expenses  not  paid  quarterly,             but  excluding  debt  service  charges,  income  taxes,  depreciation,                                       -7- 





 






 Exhibit 10.38               amortization  and  other  non-cash  expenses),  including,  other  than              with respect to Real Estate Assets that are subject to absolute net              leases,  a  management  fee  equal  to  the  greater  of  four  percent              (4.0%)  or  actual,  minus,  without  duplication  of  the  foregoing,              applicable rental payments made by the applicable Unencumbered              Property  Owner,  including  with  respect  to  any  Eligible  Ground              Lease relating to such Real Estate Asset.      Section 1.10.  The  definitions  of  “FFO  Distribution  Allowance,”  “Florida  Equity Interests,” “Funds  from  Operations” and  “Ziegler  Florida  4”  in  Schedule B  of  the  Note Purchase Agreement shall be and are hereby deleted in their entirety.      Section 1.11.  Exhibit  9.1(c)-1  (Form  of  Compliance  Certificate)  to  the  Note  Purchase Agreement  shall  be  and  is  hereby  amended  by  deleting  the  reference  to  “FFO  Distribution Allowance” in paragraph 4 thereof.  SECTION 2.     REPRESENTATIONS AND WARRANTIES OF THE OBLIGORS.       Section 2.1.  To  induce  the  Noteholders  to  execute  and  deliver  this  First  Amendment  (which  representations  shall survive the execution  and  delivery  of  this  First  Amendment), the  Obligors jointly and severally represent and warrant to the Noteholders that:               (a)   this First Amendment has been duly authorized, executed and delivered by        each  Obligor  and  this  First  Amendment  constitutes  the  legal,  valid  and  binding        obligation, contract and agreement of each Obligor enforceable against such Obligor in        accordance  with  its  terms,  except  as  enforcement  may  be  limited  by  bankruptcy,        insolvency, reorganization, moratorium or similar laws or equitable principles relating to        or limiting creditors’ rights generally;               (b)  the  Note  Purchase  Agreement,  as  amended  by  this  First  Amendment,        constitutes  the  legal,  valid  and  binding  obligation,  contract  and  agreement  of  each        Obligor enforceable against such Obligor in accordance with its respective terms, except        as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or        similar laws or equitable principles relating to or limiting creditors’ rights generally;               (c)   the  execution,  delivery  and performance  by  each  of  the  Obligors of  this        First  Amendment  (i) has  been  duly  authorized  by  all  requisite  corporate  action  and,  if        required,  shareholder  action,  (ii) does  not  require  the  consent  or  approval  of  any        governmental or regulatory body or agency and (iii) will not (A) violate (1) any provision        of law, statute, rule or regulation or such Obligor’s certificate of incorporation or bylaws,        (2) any  order  of  any  court  or  any  rule,  regulation  or  order  of  any  other  agency  or        government binding upon  such Obligor  or  (3) any  provision  of  any  material  indenture,        agreement or other instrument to which such Obligor is a party or by which its properties        or assets are or may be bound, including, without limitation, under any Material Credit        Facility, or (B) result in a breach or constitute (alone or with due notice or lapse of time                                         -8- 





 






 Exhibit 10.38         or both) a default under any indenture, agreement or other instrument referred to in clause        (iii)(A)(3) of this Section 2.1(c);               (d)  as of the date hereof and after giving effect to this First Amendment, no        Default or Event of Default has occurred which is continuing;               (e)   no  Subsidiaries  or  Affiliates  of  either  Obligor  are  guarantors  or  are        otherwise liable for or in respect of any Indebtedness under any Material Credit Facility        or any notes issued thereunder; and                (f)  all the representations and warranties contained in Sections 5.1, 5.8, 5.24        and  5.25  of  the  Note Purchase  Agreement  are  true  and  correct  in  all  material  respects        with the same force and effect as if made by each Obligor on and as of the date hereof.  SECTION 3.     CONDITIONS TO EFFECTIVENESS OF THIS FIRST AMENDMENT.       Section 3.1.  This  First Amendment  shall  not  become effective until,  and shall  become  effective when, each and every one of the following conditions shall have been satisfied:               (a)   executed counterparts of this First Amendment, duly executed by each of        the  Obligors  and  the  holders  of  greater  than  50%  of  the  outstanding  principal  of  the        Notes, shall have been delivered to the Noteholders;               (b)  the  Obligors  shall  have  provided  to  the  Purchasers  a  true,  correct  and        complete copy of the Existing Credit Facility, including all amendments thereto, that is in        full force and effect as of the date hereof;               (c)   the  representations  and  warranties  of  each  of  the  Obligors  set  forth  in        Section 2 hereof are true and correct on and with respect to the date hereof; and               (d)  the  fees  and  expenses  of  Chapman  and  Cutler,  LLP,  counsel  to  the        Noteholders,  shall  have  been paid  by the  Obligors,  in connection  with  the  negotiation,        preparation, approval, execution and delivery of this First Amendment.   Upon receipt of all of the foregoing, this First Amendment shall become effective.   SECTION 4.    MISCELLANEOUS.       Section 4.1.  This First Amendment shall be construed in connection with and as part of  the  Note  Purchase  Agreement,  and  except  as  modified  and  expressly  amended  by  this  First  Amendment, all terms, conditions and covenants contained in the Note Purchase Agreement and  the Notes are hereby ratified and confirmed and shall be and remain in full force and effect.       Section 4.2.  Any  and  all  notices,  requests,  certificates  and  other  instruments  executed  and  delivered after the execution  and  delivery  of this First  Amendment  may refer to the  Note                                         -9- 





 






Exhibit 10.38  Purchase Agreement without making specific reference to this First Amendment but nevertheless all such references shall include this First Amendment unless the context otherwise requires.      Section 4.3.  The  descriptive  headings  of  the  various  Sections  or  parts  of  this  First Amendment are for convenience only and shall not affect the meaning or construction of any of the provisions hereof.      Section 4.4.  This  First  Amendment  shall  be  governed  by  and  construed  in  accordance with New York law.                                    *  *  *  *  *                                        -10- 





 






Exhibit 10.38       Section 4.5.  The execution hereof by you shall constitute a contract between us for the uses  and  purposes  hereinabove  set  forth,  and  this  First  Amendment  may  be  executed  in  any number of counterparts, each executed counterpart constituting an original, but all together only one agreement.                                          PHYSICIANS REALTY L.P., a Delaware                                          limited partnership                                        By:  Physicians Realty Trust, as General Partner                                         By /s/ John T. Thomas                                          Name: John T. Thomas                                           Title: President and Chief Executive                                                    Officer                                          PHYSICIANS REALTY TRUST, a Maryland                                          real estate investment trust                                         By /s/ John T. Thomas                                           Name: John T. Thomas                                          Title: President and Chief Executive                                                   Officer                                        -11- 





 






Accepted and Agreed to on the date first written above:                                         AMERICAN GENERAL LIFE INSURANCE                                          COMPANY                                        THE UNITED STATES LIFE INSURANCE COMPANY                                          IN THE CITY OF NEW YORK                                        THE VARIABLE ANNUITY LIFE INSURANCE                                          COMPANY                                        LEXINGTON INSURANCE COMPANY                                        NATIONAL UNION FIRE INSURANCE COMPANY OF                                          PITTSBURGH, PA                                         By:  AIG Asset Management (U.S.) LLC,                                            Investment Adviser                                               By: /s/ Bryan Eells                                                Name: Brian Eells                                                Title: Vice President                                        -12-