Judgment — Antibes Commercial Court

GENERAL REGISTER ENTRY NUMBER: 2001 001443 MASS Emolument - Daboure hurf,- 9и.10 toni cim 296.60 1.4 ^. 14,6, - Totu: 202,11 ENFORCEABLE COPY ISSUED Д haite Deup 1o 24/09, en CLAIMANT(S) COMMERCIAL COURT OF ANTIBES FIRST CHAMBER JUDGMENT OF 21/09/2001 SOCIETE CREDIT DU NORD SA 59 BOULEVARD HAUSSMANN 75008 PARIS REPRESENTED BY: MAITRE DEUR *********** DEFENDANT(S) SOCIETE B ET O SARL QUARTIER DES COMBES 1990 ROUTE DE GRASSE 06600 ANTIBES REPRESENTED BY: NOT APPEARING **** COMPOSITION OF THE COURT DURING THE HEARINGS AND DELIBERATION: PRESIDING JUDGE : MONSIEUR THIERRY FISSOLO SITTING JUDGE(S) : MONSIEUR MASCARELLO MADAME DI FRANCESCO **** CLERK DURING THE HEARINGS: MAITRE FRANCOISE REES HEARINGS AT THE SITTING OF 22/06/2001 *************** 1E ABOVE SEAL OF BISTRE COLOUR SIGNAS ODE VOUS ETES EN PRESENCE D'UN ORIGNAL EMANANT Du GReFFE BY DEED dated 11/04/2001 of the SCP ZONINO ERCOLI, Bailiffs associated at SAINT LAURENT DU VAR, the SA CREDIT DU NORD had a writ of summons served on the SARL B ET O to appear at the hearing of the COMMERCIAL COURT OF ANTIBES held on FRIDAY 27/04/2001 at 8:30 for the purposes of HAVING REGARD to the provisions of Article 1147 of the Civil Code, HAVING REGARD to the loan agreement signed between the Company CREDIT DU NORD and the Company B ET O on 04/10/1996, HAVING REGARD to the operation of the early repayment clause and the formal notice issued on 07/01/1999, Hearing the Company B ET O ordered to pay the sum of 2,623,755.89 F in principal and interest, as at 4 January 1999, plus interest at the contractual rate accrued since 04/01/1999 and to accrue until full payment; Hearing provisional enforcement ordered of the decision to be made on the basis of Article 515 of the NCPC; Hearing the Company B ET O ordered to pay the Company CREDIT DU NORD the sum of 25,000 F on the basis of the provisions of Article 700 of the NCPC as well as the full costs. Whereas, after referral, the case was reserved for judgment at the hearing of 22/06/2001; STATEMENT OF THE DISPUTE The applicant states that it granted a loan of 3,275,000 F for a period of 7 years from 04/10/1996 to the Company B ET O, repayable by means of 84 monthly instalments ct intended to complete the financing of works on a MAC DONALD restaurant in ANTIBES; That the Company B ET O ceased to honour its repayments in 1998 following difficulties pitting it against the Company MAC DONALD with which it was bound by a lease-management agreement (location-gérance); The applicant invoked the early repayment clause in order to recover immediately the balance of the sums due; That a conciliator was appointed under an Order of the Commercial Court of ANTIBES of 04/02/1999, who attempted to find an agreement and asked the SA CREDIT DU NORD to suspend its claim pending the decision of the Court of Appeal in the dispute between the SOCIETE B ET O and MAC DONALD, which dismissed the Company B ET O's claims; That as of today the claim of CREDIT DU NORD is certain, liquid and due; HAVING REGARD to the written submissions of the Company B ET O HAVING REGARD to the summary written submissions of the SA CREDIT DU NORD DISCUSSION Whereas by loan agreement of 04/10/1996, CREDIT DU NORD lent the Company B ET O the sum of 3,275,000 F in order to complete the financing of the works and fittings of a MAC DONALD-type restaurant in ANTIBES; Whereas the Company B ET O acknowledges having ceased repayments and that as a result Article 7 of the loan agreement applies, thereby rendering due the entirety of the sums owed without any other formality than a request by registered letter; Page - 1 Whereas the Company B ET O sc acknowledges itself to be a debtor, but maintains that it was unable to fulfil its obligations on account of the wrongful conduct of the Company MAC DONALD; Whereas in its Judgment of 08/03/2001, the Paris Court of Appeal ruled on the dispute between the Company MAC DONALD and the Company B ET O among other companies of the same group and examined the nature of the ties that united the two companies, ruling on the respective losses suffered by the parties to the proceedings, this decision having the authority of res judicata; Whereas, moreover, CREDIT DU NORD cannot be criticised for not having taken protective measures, these having no influence on the nature of the claim, which is certain, liquid and due; Whereas it is therefore appropriate to order the Company B ET O to pay the balance of the loan, namely the sum of 2,623,755.89 F in principal and interest as at 04/01/1999, plus interest at the contractual rate accrued since 04/01/1999 and until full payment; On provisional enforcement Given the age of the debt, provisional enforcement should be ordered; On the claim under Article 700 of the NCPC Whereas the SA CREDIT DU NORD was obliged to incur irrecoverable costs which it would be inequitable to leave to its charge, its claim should be granted for an amount reduced to 5,000.00 F; FOR THESE REASONS THE COURT, having deliberated in accordance with the Law, RULING after adversarial proceedings and at first instance, HAVING REGARD to the loan agreement of 04/10/1996 signed between the parties and Article 7 of the said agreement, ORDERS the SARL B ET O to pay the SA CREDIT DU NORD the sum of 2,623,755.89 F in principal and interest as at 04/01/1999, plus contractual interest accrued since 04/01/1999 until full payment; ORDERS provisional enforcement of this judgment; ORDERS the SARL B ET O to pay the SA CREDIT DU NORD the sum of 5,000.00 F on the basis of the provisions of Article 700 of the New Code of Civil Procedure; ORDERS the SARL B ET O to pay the full costs. THUS JUDGED BY Messieurs Thierry FISSOLO, Presiding Judge of the Chamber, Antoine MASCARELLO and Madame Monique DI FRANCESCO, Assessor Judges, AND PRONOUNCED BY ONE OF THEM IN PUBLIC HEARING OF THE COMMERCIAL COURT OF ANTIBES ON FRIDAY TWENTY-FIRST SEPTEMBER TWO THOUSAND AND ONE, ASSISTED BY MAITRE REES, ASSOCIATE CLERK. Page - 2