EXHIBIT 10.2
ACKNOWLEDGMENT OF ASSIGNMENT OF OPTION
Smart Choice Automotive Group, Inc. ("Smart Choice"), a Florida
corporation, hereby acknowledges and represents the following to FINOVA Capital
Corporation ("FINOVA"), a Delaware corporation, and to MOTIVE GROUP, L.P.
("Buyer"), a Texas limited partnership ("Buyer"), a Texas limited partnership:
1. Status of Paaco Option. The "Paaco Option," as defined in
that Forbearance Agreement (the "Forbearance Agreement") dated as of November 8,
2001, among FINOVA; Paaco Automotive Group, L.P., a Texas limited partnership
and successor by conversion to Paaco Automotive Group, Inc., a Texas
corporation; Premium Auto Acceptance Corporation, a Texas corporation; Florida
Finance Group, Inc., a Florida corporation; Liberty Finance Company, a Florida
corporation; Smart Choice Receivables Holding Company, a Delaware corporation;
First Choice Auto Finance, Inc., a Florida corporation; and SC Holdings, Inc., a
Florida corporation, remains in full effect and has not been exercised. The
Paaco Option may be exercised at any time until March 9, 2002.
2. Assignment of Paaco Option. Smart Choice hereby
acknowledges that FINOVA has assigned to Buyer all of FINOVA's rights under the
Paaco Option (but no other right arising under the Forbearance Agreement, all
such other rights being retained by FINOVA), and confirms that the Paaco Option
remains in full effect as so assigned.
3. Form of Sale and Purchase Agreement. Smart Choice hereby
agrees that the closing of the Paaco Option may be conducted pursuant to the
Sale and Purchase Agreement in the form attached hereto as Exhibit A.
4. Exercise. Smart Choice acknowledges that Buyer has given
notice of its intention to exercise the Paaco Option, and no further
acknowledgment thereof shall be necessary beyond that stated in the Sale and
Purchase Agreement.
5. Entire Agreement. This Acknowledgment and the other written
agreements among the parties represent the entire agreement between the parties
concerning the subject matter hereof, and all oral discussions and prior
agreements are merged herein.
6. Amendment and Waiver in Writing. No provision of this
Acknowledgment can be amended or waived, except by a statement in writing signed
by the party against which enforcement of the amendment or waiver is sought.
7. Severability. Should any provision of this Acknowledgment
be invalid or unenforceable for any reason, the remaining provisions hereof
shall remain in full effect.
8. Gender and Number. Words used herein indicating gender or
number shall be read as context may require.
9. Captions Not Controlling. Captions and headings have been
included in this Acknowledgment for the convenience of the parties, and shall
not be construed as affecting the content of the respective sections.
10. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS AND DECISIONS OF THE STATE OF ARIZONA,
WITHOUT GIVING EFFECT TO CHOICE OF LAW PRINCIPLES.
11. JURISDICTION AND VENUE. THE PARTIES HEREBY AGREE THAT ALL
ACTIONS OR PROCEEDINGS INITIATED BY ANY OF THEM AND ARISING DIRECTLY OR
INDIRECTLY OUT OF THIS AGREEMENT SHALL BE LITIGATED IN THE SUPERIOR COURT OF
MARICOPA COUNTY, ARIZONA AND THE UNITED STATES DISTRICT COURT FOR THE DISTRICT
OF ARIZONA, AND THE PARTIES HEREBY EXPRESSLY SUBMIT AND CONSENT IN ADVANCE TO
SUCH JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED IN ANY OF SUCH COURTS.
THE PARTIES WAIVE ANY CLAIM THAT MARICOPA COUNTY, ARIZONA OR THE DISTRICT OF
ARIZONA IS AN INCONVENIENT FORUM OR AN IMPROPER FORUM BASED ON LACK OF VENUE.
THE EXCLUSIVE CHOICE OF FORUM FOR THE PARTIES SET FORTH IN THIS SECTION SHALL
NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT BY A PARTY OF ANY JUDGMENT OBTAINED IN
ARIZONA ANY OTHER FORUM TO THE EXTENT SUCH FORUM HAS JURISDICTION FOR THE TAKING
OF ANY ACTION TO ENFORCE THE SAME, AND THE PARTIES HEREBY WAIVE THE RIGHT TO
COLLATERALLY ATTACK ANY SUCH JUDGMENT OR ACTION.
12. WAIVER OF JURY TRIAL. THE PARTIES HEREBY ACKNOWLEDGE AND
AGREE THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT OR WITH RESPECT
TO THE TRANSACTIONS CONTEMPLATED HEREBY WOULD BE BASED UPON DIFFICULT AND
COMPLEX ISSUES AND, ACCORDINGLY, EACH SUCH PERSON HEREBY KNOWINGLY AND
VOLUNTARILY, WITH THE BENEFIT OF COUNSEL, WAIVES TRIAL BY JURY IN ANY ACTIONS,
PROCEEDINGS, CLAIMS OR COUNTER-CLAIMS, WHETHER IN CONTRACT OR TORT OR OTHERWISE,
AT LAW OR IN EQUITY, ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT.
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Executed as of the date first written above.
SMART CHOICE AUTOMOTIVE GROUP, INC.
By:
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Title:
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