exv10w1





Exhibit 10.1


FIRST AMENDMENT TO CREDIT AGREEMENT


     This First Amendment to Credit Agreement (this “Amendment”) dated as 2008, is by and among U.
S. PHYSICAL THERAPY, INC., a Nevada corporation (the “Borrower”), the Lenders party hereto, and
BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer (the “Agent”).


W I T N E S S E T H:



     A. The Borrower, the Agent and the Lenders named therein entered into that certain
Credit Agreement dated as of August 27, 2007 (as may be amended, restated, supplemented and
modified from time to time, the “Credit Agreement”).


     B. The Borrower, the Agent and the Lenders now desire to amend the Credit
Agreement (i) to increase the Aggregate Commitment pursuant to Section 2.14 of the
Credit
Agreement and (ii) as otherwise provided herein.


     NOW, THEREFORE, in consideration of the premises, as well as the covenants, conditions and
agreements hereafter set forth, and for other good and valuable consideration, the receipt and
adequacy of which are all hereby acknowledged, the parties covenant and agree as follows:


ARTICLE I



Definitions



     Section 1.1 Definitions. Capitalized terms used in this Amendment, to the extent not
otherwise defined herein, shall have the same meanings as in the Credit Agreement, as amended
hereby.


ARTICLE II



Amendment



     Section 2.1 Amendment to Schedule 2.01 of the Credit Agreement. “Schedule 2.01” of
the Credit Agreement is hereby amended and restated and all references to “Schedule 2.01” in the
Credit Agreement shall be deemed to refer to the “Schedule 2.01” attached hereto.


ARTICLE III



Representations and Warranties



     Section 3.1 Representations and Warranties True; No Default. By their execution and
delivery hereof, the Borrower represents and warrants that, as of the date hereof, and after
giving effect to the amendments:

FIRST AMENDMENT TO CREDIT AGREEMENT — Page 1




 








 




     (a) the representations and warranties contained in the Credit Agreement and
the other Loan Documents are true and correct in all material respects on and as of the
date hereof as made on and as of such date;




     (b) no event has occurred and is continuing which constitutes a Default;




     (c) (i) the Borrower has full power and authority to execute and deliver this
Amendment, (ii) this Amendment has been duly executed and delivered by the Borrower,
and (iii) this Amendment and the Credit Agreement, as amended hereby, constitute the
legal, valid and binding obligations of the Borrower, enforceable in accordance with
their
respective terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors’ rights
generally
and subject to general principles of equity (regardless of whether enforcement is
sought
in a proceeding in equity or at law) and except as rights to indemnity may be limited
by
federal or state securities laws;




     (d) neither the execution, delivery and performance of this Amendment or the
Credit Agreement, as amended hereby, nor the consummation of any transactions
contemplated herein or therein, will conflict with any law or organization documents of
the Borrower, or any indenture, agreement or other instrument to which the Borrower or
the Borrower or any of its respective properties are subject; and




     (e) no authorization, approval, consent, or other action by, notice to, or filing
with, any governmental authority or other Person not previously obtained is required
for
the execution, delivery or performance by the Borrower of this Amendment.



ARTICLE IV




Conditions Precedent




     Section 4.1 Conditions to Effectiveness. This Amendment shall be effective upon
satisfaction or completion of the following:




     (a) the Agent shall have received this Amendment executed by the Borrower;




     (b) the Agent shall have received an amended and restated Note executed by
the Borrower;




     (c) the Agent shall have received any amounts due and payable under the Fee
Letter;




     (d) the representations and warranties set forth in Article III hereof are true
and correct; and




     (e) the Agent shall have received, in form and substance satisfactory to the
Agent and its counsel, such other documents, certificates and instruments as the Agent
shall reasonably require.



FIRST AMENDMENT TO CREDIT AGREEMENT — Page 2




 









 




ARTICLE V


Miscellaneous


     Section 5.1
Reference to the Credit Agreement.


     (a) Upon the effectiveness of this Amendment, each reference in the Credit
Agreement to “this Agreement,” “hereunder,” or words of like import shall mean and be a
reference to the Credit Agreement, as affected and amended hereby.



     (b) The Credit Agreement, as amended by the amendments referred to above,
shall remain in full force and effect and is hereby ratified and confirmed.


     Section 5.2
Costs, Expenses and Taxes. The Borrower agrees to pay on demand all costs
and expenses of the Agent in connection with the preparation, reproduction, execution and delivery
of this Amendment and the other instruments and documents to be delivered hereunder (including the
reasonable fees and out-of-pocket expenses of counsel for the Agent with respect thereto).


     Section 5.3 Execution in Counterparts. This Amendment may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which when taken together
shall constitute but one and the same instrument. For purposes of this Amendment, a counterpart
hereof (or signature page thereto) signed and transmitted by any Person party hereto to the Agent
(or its counsel) by facsimile machine, telecopier or electronic mail is to be treated as an
original. The signature of such Person thereon, for purposes hereof, is to be considered as an
original signature, and the counterpart (or signature page thereto) so transmitted is to be
considered to have the same binding effect as an original signature on an original document.


     Section 5.4 Governing Law; Binding Effect. This Amendment shall be governed by and
construed in accordance with the laws of the State of Texas applicable to agreements made and to
be performed entirely within such state, provided that each party shall retain all rights arising
under federal law, and shall be binding upon the parties hereto and their respective successors
and assigns; provided, however, that the Borrower may not assign any of their respective
rights arising from this Amendment or any other Loan Document without the prior written consent of
each Lender, and any prohibited assignment shall be null and void.


     Section 5.5 Headings. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment for any other
purpose.


     Section 5.6 Entire Agreement. THE CREDIT AGREEMENT, AS AMENDED BY THIS AMENDMENT, AND
THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.

FIRST AMENDMENT TO CREDIT AGREEMENT — Page 3


 










 






     IN WITNESS WHEREOF, the parties hereto have executed this Amendment to be duly
executed by their respective authorized officers as of the day and year first above
written.



	 	 	 	 	 
	 	BORROWER:





U.S. PHYSICAL THERAPY, INC.

 	 
	 	By:  	/s/ Lawrance W. McAfee
 	 
	 	 	Lawrance W. McAfee  	 
	 	 	Chief Financial Officer 	 
	 



SIGNATURE
PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT




 









 




	 	 	 	 	 
	 	BANK OF AMERICA, N.A., 
as
Administrative Agent

 	 
	 	By:  	/s/ Daniel Penkar
 	 
	 	 	Daniel Penkar 	 
	 	 	Senior Vice President 	 
	 



SIGNATURE
PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT


 








 









	 	 	 	 	 
	 	BANK OF AMERICA, N.A.,

as a Lender, L/C Issuer and Swing Line Lender

 	 
	 	By:  	/s/  Daniel Penkar
 	 
	 	 	Daniel Penkar 	 
	 	 	Senior Vice President 	 
	 



SIGNATURE
PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT





 









 




SCHEDULE 2.01


COMMITMENTS

AND APPLICABLE PERCENTAGES


	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Applicable
	Lender
	 	Commitment	 	Percentage
	 
	Bank of America, N.A.
	 	$	50,000,000	 	 	 	100	%
	 
	Total
	 	$	50,000,000	 	 	 	100.000000000	%