Exhibit 10.32


 


AMENDMENT


 


FIRST
AMENDMENT (this “Amendment”), effective as of November 13, 2003, to
the Exchange Agreement (the “Exchange Agreement”), dated as of
November 13, 2003, by and between DFG Holdings, Inc., a Delaware
corporation (the “Company”), GS Mezzanine Partners, L.P., a limited
partnership organized under the laws of Delaware (“GS Mezzanine”),
GS Mezzanine Partners Offshore, L.P., an exempted limited partnership organized
under the laws of the Cayman Islands (“GS Mezzanine Offshore”), Stone
Street Fund 1998, L.P., a limited partnership organized under the laws of
Delaware (“Stone Street”), Bridge Street Fund 1998, L.P., a limited
partnership organized under the laws of Delaware (“Bridge Street”, and
collectively with Stone Street, GS Mezzanine and GS Mezzanine Offshore,
the “GSMP Purchasers”), Ares Leveraged Investment Fund, L.P., a limited
partnership organized under the laws of Delaware (“Ares I”) and Ares
Leveraged Investment Fund II, L.P., a limited partnership organized under the
laws of Delaware (“Ares II” and, collectively with Ares I, “Ares”
and, collectively with the GSMP Purchasers, the “Purchasers”).  Capitalized terms used herein and not
defined herein shall have the respective meanings ascribed to such terms in the
Exchange Agreement.


 


RECITALS


 


WHEREAS,
pursuant to the Exchange Agreement, the Company sold $49,351,422.48 in
aggregate principal amount of 16% Senior Notes Due 2012 (the “Notes”) to
the Purchasers,


 


WHEREAS,
pursuant to Section 9.17 of the Exchange Agreement, the Purchasers
constituting the Required Holders requested that the Company enter into an
Indenture (as hereinafter defined) with an indenture trustee under which
replacement notes (the “Replacement Notes”) in aggregate principal
amount of $49,351,422 will be issued to the Purchasers in exchange for the
Notes and certain covenants and agreements of the Company under the Exchange
Agreement will be substituted for with covenants and agreements to be set forth
under the Indenture,


 


WHEREAS,
concurrently herewith, the Company is entering into an Indenture (the “Indenture”)
with U.S. Bank National Association, as Trustee (the “Trustee”) in the
form of Exhibit A hereto,


 


NOW,
THEREFORE, in consideration of the premises and the mutual agreements herein
set forth, the parties hereto agree as follows:


 


1.                                       Definitions.  Section 1 of the Exchange Agreement is
hereby amended as follows:


 


(a)                                  The
first sentence of Section 1.1 is hereby deleted and replaced with the
following:


 


“Capitalized
terms used herein without definition shall have the meanings ascribed to such
terms in the Indenture.  In addition,
the following terms shall have the meanings specified herein unless the context
otherwise requires.”


 


(b)                                 All
defined terms used in the Sections of the Exchange Agreement that are being
deleted pursuant to Section 2 of this Amendment are hereby deleted in
their entirety unless such defined terms are used elsewhere in the Exchange
Agreement and the Indenture does not contain definitions for such terms.  In the event that the Indenture contains a
definition for any term used in the


 

















 


Exchange Agreement, the
definition set forth in the Exchange Agreement is replaced in its entirety by
the definition set forth in the Indenture.


 


(c)                                  The
following definitions hereby replace the existing definitions of such terms set
forth in Section 1.1 of the Exchange Agreement:


 


“Company
Financial Statements” means the financial statements of the Company filed
with the Commission pursuant to its obligations under Section 5.03 of the
Indenture.


 


“Special
Interest” means Liquidated Damages, as defined in the Indenture.


 


“Required
Holders” means Purchasers who hold more than 50% of the aggregate principal
amount of the outstanding Notes.


 


2.                                       Other
Amendments to the Exchange Agreement.


 


(a)                                  Section 6
(“Covenants to Provide Information”) is hereby deleted in its entirety and a
new Section 6.1 is hereby substituted in place thereof as follows:


 


“Section 6.1.                             Covenant
to Provide Information.  So long as
the Purchasers hold any Notes, the Company covenants and agrees with each
Purchaser that at least ten (10) days prior thereto, it will deliver to each
Purchaser a written notice of any proposed extension, renewal, refinancing or
modification of any Indebtedness exceeding $250,000 of the Company or any of
its Subsidiaries.”


 


(b)                                 Section 7
(“Other Affirmative Covenants”) of the Exchange Agreement, except Sections
7.3(c), 7.3 (d) and 7.8, is hereby deleted in their entirety.


 


(c)                                  Section 8
(“Negative Covenants”) of the Exchange Agreement is hereby deleted in its entirety
and a new Section 8.1 is hereby substituted in place thereof as
follows:


 


“8.1.                        Amendment
of Indenture.  The Company shall not
amend or waive the provisions of Sections 3.02, 3.08 and 5.17 of the Indenture,
or any of the definitions used in such Sections, without the prior written
consent of Ares, so long as Ares owns any Notes.”


 


(d)                                 Sections
9.13 (“DTC Agreement”), 9.14 (“Portal”) and 9.17 (Exchange
Right), Section 10 (“The Notes”), Section 11 (“Events
of Default”) and Section 12 (“Redemption”) of the Exchange
Agreement are hereby deleted in their entirety.


 


(e)                                  Section 14.4
of the Exchange Agreement is hereby replaced in its entirety with the
following:


 


“Section 14.4.        Amendments, Waiver and Consents.  This Agreement may be amended and the
observance of any term hereof may be waived (either retroactively or
prospectively) with (and only with) the written consent of the Company and the
Required Holders; provided however, that no such amendment or waiver may,
without the prior written consent of the Holder of each Note and Exchange Note
then outstanding and affected thereby (a) subject any Holder to any additional
obligation or (b)


 


2

















 


amend or waive the
provisions of Section 7.8 or any of the definitions used in such
Section.  No amendment or waiver of this
Agreement will extend to or affect any obligation, covenant or agreement not
expressly amended or waived or thereby impair any right consequent thereon.  As used herein, the term “Agreement” and
references thereto shall mean this Agreement as it may from time to time be
amended or supplemented.”


 


(f)                                    Exhibit
A of the Exchange Agreement is hereby replaced with Sections 2.02
and 2.03 of the Indenture. 
Without limiting the generality of the foregoing, each Purchaser
acknowledges and agrees that the percentage used in calculating the Adjusted
Actual Payment has been changed from 16.67%  to 16.51%.


 


(g)                                 Schedule A
to the Exchange Agreement is replaced in its entirety with Schedule A
attached hereto.


 


3.                                       Indenture.  Concurrently herewith, the Company shall
enter into the Indenture.


 


4.                                       Exchange
of the Notes.  Concurrently
herewith, the Company will issue and cause to be authenticated, in accordance
with the terms of the Indenture, Replacement Notes in the form set forth in Sections 2.02
and 2.03 of the Indenture.  The
Replacement Notes shall be issued, in exchange for the Notes surrendered by the
Purchasers, in principal amounts equal to the respective principal amounts of
the Notes so surrendered by each Purchaser. 
To receive Replacement Notes, each Purchaser shall surrender all of its
Notes.  The Replacement Notes will be
issued in the form of one or more Global Notes (as defined in the Indenture)
authenticated by the Trustee as of November 13, 2003 and registered in the
name of the Depository Trust Company, as the Depositary (“DTC”), or its
nominee, and deposited with the Trustee, as custodian for DTC, for credit by
DTC to the respective accounts of the beneficial owners of the Replacement
Notes represented thereby.  From and
after the date of surrender, the Notes shall cease to bear interest and shall
cease to be outstanding for any purpose.


 


5.                                       Conditions
to Effectiveness.  This Amendment
shall become effective upon (a) the due authorization, execution and delivery
of the Indenture by the parties thereto, (b) the surrender by the Purchasers of
all of their Notes, (c) the execution and delivery by the Company of the
Replacement Notes to the Trustee, the authentication of the Replacement Notes
by the Trustee and the delivery of the Replacement Notes to DTC pursuant to Section 4
hereof, (d) the compliance by the Company with its obligations pursuant to Sections 9.13
and 9.14 of the Exchange Agreement with respect to the Replacement Notes
and (e) the receipt by the Trustee and each Purchaser of opinions in form and
substance satisfactory to each Purchaser, dated the date hereof, from Irell
& Manella LLP, counsel to the Company, as to the Indenture, the Replacement
Notes and this Amendment, and such other matters as the Trustee or the
Purchasers may reasonably request.


 


6.                                       Exchange
Agreement Remains in Effect; Indenture Controls.


 


(a)                                  Except
as expressly amended herein or as provided in clause (b) of this Section 6,
the Exchange Agreement shall continue to be, and shall remain, in full force
and effect.  This Amendment shall not be
deemed to be a waiver of, or consent to, or a modification or amendment of, any
other term or condition of the Exchange Agreement or to prejudice any other
right or rights which the Holders may now have or may have in the future under
or in connection with the Exchange Agreement or any


 


3

















 


of the instruments or
agreements referred to therein, as the same may be amended from time to
time.  The representations of the
Purchasers set forth in Section 5 of the Exchange Agreement shall
apply mutatis mutandi to this Amendment, as though fully set forth herein with
respect to the Replacement Notes.


 


(b)                                 In
the event of any conflict between the provisions of the Exchange Agreement and
the provisions of the Indenture, the provisions of the Indenture shall control
and shall be deemed to have superseded and replaced the conflicting provisions
of the Exchange Agreement.


 


7.                                       Counterparts.  This Amendment may be executed in any number
of counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument.  It shall not be necessary in making proof of
this Amendment to produce or account for more than one such counterpart.  Each counterpart may consist of a number of
copies hereof, each signed by less than all, but together signed by all, of the
parties hereto.


 


8.                                       Acknowledgement.  Reference is hereby made to (a) that certain
Note SN-3, dated November 13, 2003, made by the Company in favor of Stone
Street in the original principal amount of US$1,061,174.28 (the “Stone Note”)
and (b) that certain Note SN-4, dated November 13, 2003, made by the
Company in favor of Bridge Street in the original principal amount of
US$320,131.38 (the “Bridge Note,” and together with the Stone Note, the
“3-4 Notes”) each issued under the Exchange Agreement.  Stone Street acknowledges that the Stone
Note was exchanged for a Replacement Note in the aggregate principal amount of
US$1,061,174 and Bridge Street acknowledges that the Bridge Note was exchanged
for a Replacement Note in the aggregate principal amount of US$320,131, in each
case as of November 13, 2003 pursuant to this Amendment.  Accordingly, each of Stone Street and Bridge
Street, being the owner and holder of its respective 3-4 Note, by execution of
this Amendment, hereby acknowledges full satisfaction of all amounts owing
under such 3-4 Note and hereby cancels the same.  The original of such 3-4 Note not being available, Stone Street
and Bridge Street each hereby agrees to indemnify and hold the Company harmless
from and against any claim that the amounts evidenced by the Stone Note or the
Bridge Note, as the case may be, have not been satisfied.  Each of Stone Street and Bridge Street
represents that it has not sold, assigned, pledged, transferred, negotiated,
deposited under any agreement, or hypothecated its respective 3-4 Note or any
interest therein, or signed any power of attorney or other authorization
respecting the same which is now outstanding and in force or otherwise deposed
of the same, and no person, firm, corporation, or other entity has or has
asserted any right, title, claim, equity or interest in, to, or respecting the
same.  Each of Stone Street and Bridge
Street further agrees to return its 3-4 Notes to the Trustee no later than
December 23, 2003.


 


9.                                       GOVERNING
LAW.  THIS AMENDMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND
THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW
YORK, EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD
REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.


 


525568


 


4

















 


IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed, as of the day and year first above written.


 


	
   

  	
  DFG HOLDINGS,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Donald F.
  Gayhardt

  	
   

  
	
   

  	
   

  	
  Name: Donald F.
  Gayhardt

  
	
   

  	
   

  	
  Title: President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GS MEZZANINE
  PARTNERS, L.P.

  
	
   

  	
   

  
	
   

  	
  By:  GS Mezzanine Advisors, L.L.C., its general
  partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Katherine B.
  Enquist

  	
   

  
	
   

  	
   

  	
  Name: Katherine
  B. Enquist

  
	
   

  	
   

  	
  Title: Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GS MEZZANINE
  PARTNERS OFFSHORE, L.P.

  
	
   

  	
   

  
	
   

  	
  By:  GS Mezzanine Advisors, L.L.C., its general
  partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Katherine B.
  Enquist

  	
   

  
	
   

  	
   

  	
  Name: Katherine
  B. Enquist

  
	
   

  	
   

  	
  Title: Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  STONE STREET
  FUND 1998, L.P.

  
	
   

  	
   

  
	
   

  	
  By:  Stone Street 1998, L.L.C., its general
  partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Katherine B.
  Enquist

  	
   

  
	
   

  	
   

  	
  Name: Katherine
  B. Enquist

  
	
   

  	
   

  	
  Title: Vice
  President

  
					



 

















 


	
   

  	
  BRIDGE STREET
  FUND 1998, L.P.

  
	
   

  	
   

  
	
   

  	
  By:  Stone Street 1998, L.L.C., its general
  partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Katherine B.
  Enquist

  	
   

  
	
   

  	
   

  	
  Name: Katherine
  B. Enquist

  
	
   

  	
   

  	
  Title: Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ARES LEVERAGED
  INVESTMENT FUND, L.P.

  
	
   

  	
   

  
	
   

  	
  By:  ARES Management, L.P.

  
	
   

  	
   

  
	
   

  	
  By:  ARES Operating Member, LLC, its general
  partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeff Serota

  	
   

  
	
   

  	
   

  	
  Name: Jeff
  Serota

  
	
   

  	
   

  	
  Title: Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ARES LEVERAGED
  INVESTMENT FUND II, L.P.

  
	
   

  	
   

  
	
   

  	
  By:  ARES Management II, L.P.

  
	
   

  	
   

  
	
   

  	
  By:  ARES Operating Member II, LLC, its general
  partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeff Serota

  	
   

  
	
   

  	
   

  	
  Name: Jeff
  Serota

  
	
   

  	
   

  	
  Title: Vice
  President

  



 

















 


SCHEDULE A


 


INFORMATION RELATING TO PURCHASERS


 


	
  Name and Address of Purchaser

  	
   

  	
  Principal Amount at

  Maturity of the Existing

  Holdings Notes to

  be Surrendered

  	
   

  	
  Principal

  Amount of the

  Notes to

  be Received

  	
   

  	
  Financing

  Payment

  	
   

  	
  Redemption of

  Existing Holdings

  Notes pursuant to

  Section 3.6(1)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GS MEZZANINE
  PARTNERS, L.P.

  85 Broad Street

  New York, New York 10004

  Telecopy: (212) 902-3000

  Attention:  Ben Adler

  	
   

  	
  $

  	
  30,294,400.03

  	
   

  	
  $

  	
  24,788,508

  	
   

  	
  $

  	
  743,655.22

  	
   

  	
  $

  	
  5,023,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GS MEZZANINE
  PARTNERS OFFSHORE, L.P.

  c/o GS Mezzanine Partners L.P.

  85 Broad Street

  New York, New York 10004

  Telecopy: (212) 902-3000

  Attention:  Ben Adler

  	
   

  	
  $

  	
  16,267,631.07

  	
   

  	
  $

  	
  13,311,325

  	
   

  	
  $

  	
  399,339.75

  	
   

  	
  $

  	
  2,697,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  STONE STREET
  FUND 1998, L.P.

  85 Broad Street

  New York, New York 10004

  Telecopy: (212) 902-3000

  Attention:  Ben Adler

  	
   

  	
  $

  	
  1,296,846.01

  	
   

  	
  $

  	
  1,061,174

  	
   

  	
  $

  	
  31,835.23

  	
   

  	
  $

  	
  215,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BRIDGE STREET
  FUND 1998, L.P.

  85 Broad Street

  New York, New York 10004

  Telecopy: (212) 902-3000

  Attention:  Ben Adler

  	
   

  	
  $

  	
  391,369.81

  	
   

  	
  $

  	
  320,131

  	
   

  	
  $

  	
  9,603.94

  	
   

  	
  $

  	
  65,000.00

  	
   

  



 


 












(1)                                  Shows
50% of the aggregate amount of redemption. 
The other 50% are shown in the Subordinated Note Exchange Agreement as
applied to the Existing Holdings Notes exchanged for the Subordinated Notes.


 

















 


	
  ARES LEVERAGED
  INVESTMENT FUND, L.P.

  1999 Avenue of the Stars, Suite 1900

  Los Angeles, California 90067

  Telecopy: (310) 201-4170

  Attention:  Jeff Serota

  	
   

  	
  $

  	
  6,031,280.87

  	
   

  	
  $

  	
  4,935,142

  	
   

  	
  $

  	
  148,054.26

  	
   

  	
  $

  	
  1,000,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARES LEVERAGED
  INVESTMENT FUND II, L.P.

  1999 Avenue of the Stars, Suite 1900,

  Los Angeles, California 90067

  Telecopy: (310) 201-4170

  Attention:  Jeff Serota

  	
   

  	
  $

  	
  6,031,280.86

  	
   

  	
  $

  	
  4,935,142

  	
   

  	
  $

  	
  148,054.26

  	
   

  	
  $

  	
  1,000,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TOTAL:

  	
   

  	
  $

  	
  60,312,808.65

  	
   

  	
  $

  	
  49,351,422

  	
   

  	
  $

  	
  1,480,542.67

  	
   

  	
  $

  	
  10,000,000.00