EXHIBIT
  10.29

  
	
   

  	
  CONFORMED COPY

  






 


AMENDMENT NO. 5 TO

STOCK PURCHASE AGREEMENT


 


This Amendment No. 5 to Stock Purchase Agreement is entered into as of
August 2, 2002 by and between ATC Distribution Group, Inc., a Delaware
corporation (the “Company”), and Aftermarket Technology Corp., a Delaware
corporation (“Seller”).


 


WHEREAS, ATCDG Acquisition Corp., Inc. (“Acquisition Corp.”) and Seller
entered into a Stock Purchase Agreement, dated as of September 1, 2000 (as
amended to the date hereof, the “Stock Purchase Agreement”), pursuant to which
Acquisition Corp. acquired all of the outstanding capital stock of the Company
on October 27, 2000; terms not otherwise defined herein shall have the meanings
ascribed to them in the Stock Purchase Agreement;


 


WHEREAS, Acquisition Corp. paid a portion of the purchase price for the
Company by issuing to Seller a promissory note in the principal amount of
$10,050,000 (as subsequently amended and restated the “Promissory Note”)
pursuant to that certain Note Purchase Agreement dated as of October 27, 2000
among Acquisition Corp., the guarantors from time to time party thereto and
Seller (the “Note Purchase Agreement”);


 


WHEREAS, following such purchase Acquisition Corp. was merged with and
into the Company and the Company succeeded to all the rights and obligations of
Acquisition Corp. under the Stock Purchase Agreement, the Promissory Note and
the Note Purchase Agreement;


 


WHEREAS, the Company has requested that Seller agree to certain
amendments to the Promissory Note and the Note Purchase Agreement and Seller is
willing to agree to such amendments in exchange for the agreements of the
Company contained in this Amendment;


 


NOW, THEREFORE, in consideration of the foregoing premises and the
covenants and agreements set forth below, the parties hereto agree as follows:


 


1.                                      Mexicali
Matters.  The Stock Purchase
Agreement is hereby amended by deleting in their entirety Sections 1 and 2 of
that certain Amendment to Stock Purchase Agreement dated as of October 27,
2000 between Acquisition Corp. and Seller, which Sections 1 and 2 are no longer
of any force and effect (except for purposes of defined terms used herein).


 


2.                                      Release
of Claims.  The Company, on its
own behalf and on behalf of its affiliates, hereby waives, and releases and discharges
Seller and its affiliates, officers, directors, employees and agents
(collectively, the “Released Parties”) from, any and all claims, liabilities,
damages, demands and causes of action, whether known or unknown, fixed


 

















 


or contingent, that the Company or such affiliates may have or claim to
have against any of the Released Parties relating to, or arising out of, any of
the following:


 


(a)                                  the
Mexicali System Costs;


 


(b)                                 the
Mexicali Third Party Indemnity or the Mexicali Third Party Losses;


 


(c)                                  those
certain sales and use tax audits in the States of Missouri and Florida
referenced in that certain letter dated June 27, 2002 from Robert J.
Fitzsimmons of The Riverside Company to Joseph Salamunovich of Seller, a copy
of which is attached hereto as Exhibit A);


 


(d)                                 the
alleged software licensing violations referenced in Exhibit A;


 


(e)                                  the
Slauson Litigation, including but not limited to Seller’s obligation to defend
and indemnify the Buyer Indemnitees with respect to the Slauson Litigation and
all matters arising out of the facts surrounding the settlement and dismissal
of the Slauson Litigation;


 


(f)                                    the
Company’s and Seller’s alleged or actual failure to have or procure the right
to use the catalog images that were the subject of the Slauson Litigation or
other images substantially similar thereto; and


 


(g)                                 the
Company’s procurement of a license or similar right to use the catalog images
that were the subject of the Slauson Litigation or other images substantially
similar thereto.


 


Although pursuant to clause (e)
above the Company is waiving all claims that it may have against Seller for
Seller’s failure to obtain the Company’s consent to the settlement of the
Slauson Litigation, the Company is not waiving its claim that the settlement of
the Slauson Litigation required the Company’s consent and therefore the
settlement without such consent is unenforceable.  The Company has appealed the dismissal of the Slauson Litigation
to the Ninth Circuit Court of Appeals. 
If the  appeal of the Slauson
Litigation results in a reversal of the judgment of dismissal or if for any
other reason the Slauson Litigation is remanded to the District Court, by
virtue of clause (e) above Seller will have no obligation to defend or
indemnify the Buyer Indemnitees with respect to the Slauson Litigation.


 


3.                                      New
Basket.  Section 9.01 of the
Stock Purchase Agreement is hereby amended by adding new Section 9.01(e)
thereto to read as follows:


 


“(e)                            Notwithstanding
anything else in this Agreement to the contrary, Seller shall not be required
to pay any amounts to the Company or any other Buyer Indemnitees under
Section 7.05, this Section 9.01 or any other provision of this Agreement
unless and until (i) all other applicable limitations on Seller’s
obligation to pay contained in this 


 

















 


Agreement have
been exceeded and (ii) the amount in excess of clause (i) is greater than
$100,000 in the aggregate, in which case Seller will be required to pay only
that portion that is greater than $100,000.”


 


4.                                      Acknowledgement
and Representation as to Basket and Claims.  The Company hereby acknowledges that as of the date of this
Amendment it has not applied any amounts against the Aggregate Basket such that
the Aggregate Basket equals $750,000. 
To the Company’s knowledge it has no claims against Seller under the
Stock Purchase Agreement, and does not know of any events or circumstances that
with the giving of notice or lapse of time would give rise to, a material
obligation of Seller under the Stock Purchase Agreement or a material breach by
Seller of its covenants, representations or warranties under the Stock Purchase
Agreement, except for the pending sales and use tax audits referenced in
Exhibit A and matters disclosed in the Stock Purchase Agreement or the
schedules thereto.  The Company’s knowledge
in the preceding sentence is based solely on the actual knowledge of the
Company’s President, the Company’s Chief Financial Officer and/or Robert
Fitzsimmons, without investigation or inquiry of others.


 


5.                                      Reimbursement
of Legal Fees.  The Company will
promptly reimburse Seller for the fees and expenses of its outside counsel
(Gibson, Dunn & Crutcher) incurred in connection with the amendment and
restatement of the Promissory Note and the Note Purchase Agreement and related
matters in an amount not to exceed $35,000.


 


6.                                      No
Other Amendments.  Except as
provided herein, the Stock Purchase Agreement is not otherwise modified or
amended and remains in force and effect in accordance with its terms.


 


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


 


	
   

  	
  ATC DISTRIBUTION GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert J. Fitzsimmons

  
	
   

  	
   

  	
  Robert J. Fitzsimmons

  
	
   

  	
   

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AFTERMARKET TECHNOLOGY CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joseph Salamunovich

  
	
   

  	
   

  	
  Joseph Salamunovich

  
	
   

  	
   

  	
  Vice President