Judgment — Paris Commercial Court

Histid)) XV-Z stat KG 97062466 RC 08010823 RS: 6T 86/98/67 ANS ENTRON COMMERCIAL COURT OF PARIS JUDGMENT PRONOUNCED ON MONDAY 15 MAY 1998 FIRST CHAMBER PACE i "MO" BETWEEN: 1) The company SEBOL. SA. whose registered office is Centre Commercal CARREFOUR - Chemin de Saint Claude 06630 ANTIBES represented by the Chairman of the Board of Directors Monsieur Bernard COLLORAFI residing at the registered office 2) The SARL D et O. SA. whose registered office is Rond-Pouzi Weiseller. roite de Grasse 06500 ANTIBES, represented by its manager. Morsie-t Bernard COLLORAFI, demicilié au siège social 3) Monsieur Bernard COLLORAFI, acting in his own personal name and in his capacity as signatory of the lease-management (location-gérance) agreements, residing at 21 3. chemin de l'Estelle 06:00 LE CANNET ROCHEVILLE CLAIMANT PARTIES assisted by Maître , can-Paul CLEMENT. Advocate (B405) and appearing through the SEP SEVELLEC- CHOLAY-CRESSON, Advocates (W09). Voluntary intervener The company SARL LES PINS, whose registered office is 32, avenue ne Cannes 05160 !:AN LES PINS, represented by its manager. Monsieur Bernard COLLORAFI, residing at the registered office Assisted by Maître Jean-Paul CLEMENT, Advocate (B405) and appearing through the SEP SEVELLEC-CHOLAY-CRESSON, Advocates (W09). AND: The company MC DONALD'S FRANCE, SA, whose registered office is 1. rue Gustave Eiffel 78045 GUYAACOURT CEDEX FRANCE DEFENDANT PARTY assisted by Monsieur le Bâtonnier Jean- Marie LELOUP, Maître Michèle LELOUP, Monsieur le Bâtonnier Philipe MISSEREY, associate advocates of the LAW FIRM LELOUP 6I, rut Renaudot 86000 POITIERS and |28. boulerard Saint-Germain 73006 PARIS and appearing through the SCP VINCENT. MOLAS, LEGER, CUSIN, Advocates ( XV) (P159). Joined case judged at: +_3 BETWEEN: The company MC DONALD S FRANCE. SA, whose registered office is !. rue Gustave Eiffel 7804: GUYANCOURT CEDEX FRANCE CLAIMANT PARTY assisted by Monsieur le Bâtonnier Jean- Marie LELOUP, Maître Michèle LELOUP, Monsieur le Ritonnier Philipe MISSEREY, associate advocates of the LAW FIRM IR09 J99K ice CHAMBRE PAGE : 200 A LELOUP 61, rue Renaudot 86000 POITIERS and 128, toulevard Saint-Germain 75006 PARIS er appearing through the SCP VINCENT. MOLAS, LEGER, CUSIN, Advocates (XV) (P1$9). AND: The SARL LES PINS, whose registered office is 32, avenue de Cannes 06160 JUAN LES PINS, represented by its manager, Monsieur COLLORAFI DEFENDANT PARTY assisted by Maître Jean-Pani CLEMENT, Advocate (B405) and appearing through the SES SEVELLEC- CHOLAY-CRESSON, Advocates (W09). HAVING DELIBERATED The facts Monsieur Bernard COLLORAFI signed in August 1987 with the SA MODONALD S FRANCE (hereinafter McDONALD'S) u7 licence agreement and a lease-management (location-gérance) agreement concerning the business belonging to N:DON D'S and located in the shopping arcade of the Carrefour store in Antibes (hereinafter referred to as Antibes Centre). On 31 August, with the agreement of McDONALD'S, he assigned all of his rights and obligations resulting from the lease-management agreement to the SA SEBOL, of which he personally holds almost all of the shares To counter its competitor QUICK, which had opened in July 1995 a drive-in restaurant a few hundred metres from that of SEBOL, MCDONALD S prepared the installation of a new establishment of the same type close to that of QUICK in Antibes Nord. To prevent another franchisee from setting up there, M COLLORAFI signed with MCDOVALD'S, on 9 October 1996, a second lease-management agreement covering this restaurant and entrusted its operation to the EURL B & O of which he was the manager and sole partner Subsequently M COLLARAFI put himself forward as a candidate for the lease-management of two other sites in Antibes West and in Vallauris, decided on by McDONALD S. The latter granted him only the lease-management of the Antibes West restaurant by an agreement signed on 19 April 1997 and immediately assigned by M. COLLORAFI to the EURL LES PINS, of which he was the manager and sole partner. The Vallauris establishment was entrusted to another candidate Considering that McDONALD'S had performed the agreements in bad faith in pursuing its siting policy in the region and that it had thereby caused them a loss, M. COLLORAFI and these companies undertook to obtain redress in court in June 199? Furthermore, in 1997, SEBOL and B & O and then LES PINS had left unpaid invoices for fees (royalties) owed to McDonald'S, which led the latter, after formal notices, to terminate the lease-management agreements of these three companies on 2 January 1998 The proceedings It is in these circumstances that, by writ dated 26 June 1997 (proceedings 9:0o2406), SEBOL B&O and M COLLORAF summoned McDONALD'S before this Court in order to have it declared that McDONALD'S had not performed its obligations in good faith, to order it consequently to compensate the claimants for the loss suffered by paying SEBOL 30,000,000 F, B & O 5,000,000 F and M. COLLORAFI 10,350,000 F, all sums subject to increase, and to pay each of the claimants the sum of 50,000 F under article 700 of the NCPC, provisional enforcement being requested ÷:69 9§:6ï8б/99/™ L'ILL titreter 1* 05 19v8 Ise CHAMBER PAGE 3 20' A By writs of 5 January 1998, McDONALD'S summoned SEBOL, B Zi O and LES PINS in summary proceedings (référé) before this Court to obtain their eviction. By orders of 16 January 1975 the Court held that there were no grounds for summary proceedings. These orders were appealed By writ of 30 January 1998, McDONALD'S opened another set of proceedings on the merits (79 010823) by summoning LES PINS at short notice. By this writ and by its subsequent written submissions of • levrie: 1999 and those ul ari ete regularised at the hearing before the reporting judge of 16 March 1998, MCDONALD'S asked the Court to: 1° Join proceedings 97 062466 and 98 010823, 2° Record the termination by operation of law on 2 January 1998 of the lease-management (location-gérance) and licence agreements entered into between McDONALD'S on the one hand and on the other hand - SEBOL and M. COLLORAFI on 31 August 1987, - B & O and M COLLORAFI on 9 October 1996, " LES PINS and M. COLLORAFI on 19 June 1997, by the effect of the termination clause inserted in each of the agreements. 3ª Order the eviction of SEBOL, B & O. LES PINS and M COLLORAL, as well as of all occupants through them of the fast-food businesses located respectively at - Shopping arcade of the Carrefour store. Chemin de St Claude, 05600 Antibes. - 1190 route de Grasse, C6600 Antibes, - 32 nue de Cannes, 06160 Antibes-Juan les Pins and order each of these companies and M. COLLORAFI to hand over to the owner of the business McDONALD'5. - the keys of the restaurants, - the staff list, the employment contracts and the files relating to each of the employees in order to allow the normal continuation of the employment contracts. - the operating accounts up to the day of abandonment of this operation. states that the companies and M COLLORAFI must comply with all of the above provisions on pain of a penalty payment jointly and severally between M. COLLORAFI and SEBOL for the Antibes 1 restaurant of 32,000 F per day /. M COLLORAFI and B & O for the Antibes 2 restaurant of 37,000 F per day:. M COLLORAFI and LES PINS of 26,350 F per day. from the date of the decision to be made 1º Appoint Maire ZANINO, bailiff, in the capacity of officer recording the facts in order to draw up adversarially, in each restaurant, the inventory of the stock of goods and consumables, operating items, furniture and equipment of the business and the state of the cash 5° Order jointly and severally to pay McDONALD'S a) SEBOL and M COLLORAFI the sums of 1,86? 247.84 F as unpaid fees (royalties) with interest at the statutory rate from 1 August 1997 (LRAR of 22.07) on 1,266,300 F. from 1 December 1997 (LRAR of 27 11) on 36/ 800 F. from 1 January 1998 (art 11.4) on 239,147.84 F. and 16,000 F as occupation indemnity per day from 2 January i898 until the day of the bailiff's report, whose appointment is requested above, with interest at the statutory rate, b) 8 & 0 and M COLLORAFI the sum of . PAGE + 2 2 A làr CHAMBER 1,533 548.87 f as unpaid fees (royalties) with late-payment interest at the bank base rate plus 3 points for each instalment from the date on which it should have been paid (art IX 2.3 of the agreement), and 24,00C F as occupation indemnity per day, from 2 January 1993 until the day of the bailiff's report whose appointment is requested above a et interest at the statutory rate. C) LES PINS and M. COLLORAFI the sums of 504,474.42 F as unpaid fees (royalties) with late-payment interest at the bank base rate plus 3 points for each instalment from the date on which it should have been paid (art IX.2.3 of the agreement), and 16,000 F as occupation indemnity per day from Z janver 1505 until the day of the bailiff's report whose appointment is requested above with interest at the statutory rate. - state that the interest owed to the S.A. MCDONALD shall itself bear interest, in accordance with Article 1854 of the Civil Code, 6° Take note that the SA MODONALD'S reserves the right to increase its claims in view of the conditions of return of the businesses unlawfully occupied by M COLLORAFI and his said companies and to claim all damages justified by the losses that might appear, *° Order jointly and severally SEBOL, B & O. LES PINS and M COLLORAFi to pay 100,000 F in damages to McDONALD'S for abusive proceedings B°. Dismiss the claim of SA MCDONALD'S for damages for proceedings 0° Order provisional enforcement of the decision to be made subject to the provision by the SA MADONALD'S of a bank guarantee equal in amount to that of the sums ordered as unpaid fees (royalties). 10° Order jointly and severally SEBOL, B & O. LES PINS and M COLLORAFI to pay MC DONALD'S the sum of 300,000 F in application of article 700 of the NCPC and the costs. By written submissions of 9 February 1998, SEBOL. B & O, LES PINS eL A COLLORAFI have asked the Court to: • take note of their agreement to the joinder of the proceedings. - state that McDONALD'S did not perform in good faith its obligations resulting from the agreements signed with SEBOL, B & O and LES PINS and that it terminated them wrongfully. - state that SEBOL. B & O and LES PINS were entitled to raise the defence of non-performance (exception d'inexécution). - decouter McDONALD' 5 of its claim for termination. - suspend the operation of the termination clause and grant the claimant companies two years to settle their debts on the basis of a reasonable fee (royalty), • fix the bearable fee (royalty) at 252,000 F excl. VAT for SEBOL, 932,000 F excl. VAT for B & O and 934,000 F for LES PINS. in the alternative, appoint such expert as the Court sees fit to designate to provide it with the elements enabling it to rule on the reasonable fee (royalty). in the further alternative, should the Court consider that termination is established, pronounce it to the wrongs and grievances of MCDONALD'S and consequently order the latter to pay = SEBOL S 600,000 F. B & O 22,200,000 F er LES PIN$ 13,250.COC F with interest at the statutory rate from the day of judgment. order McDONALD'S or any company that might take over the restaurants, to take back the entire staff of the three companies as well as the staff of the GIE SODEVA which provides the financial management of the three restaurants, «ire CHAMBER FACE S 203% state that SEBOL, B 2 O and LES PINS managed by M COLLORAFT, may continue to manage the fast-food businesses until they have received the whole of compensation for their loss, dismiss McDONALD'S of all its claims, order in any event McDONALD S to pay M COLLORAH the sum of 2,000,000 F in damages for non-pecuniary loss. and to pay each of the companies and A1 COLLORAFI the sum of 100.0000 F under article 700 of the NCPC, with possible increase in the event of recourse to a bailiff, provisional enforcement being requested By written submissions regularised at the hearing before the reporting judge of 16 March 1992. SEBOL. B € 0 LES PINS and M. COLLORAFI asked the Court, in addition to their previous pleadings, to - suspend the termination clause and grant M COLLORAFI and his companies a period of twenty-four months to settle the arrears on the fees (rents) due, if necessary on pain of damages. • Order in that case MC DONALD'S to pay - 2,000,000 F $ SEBOL. - 25000005 = B&0. • = 500,000 F to LES PINS. - 500,000 F to M. COLLORAFI to make good the loss suffered as at 1 January 1998. - Fix the bearable fee (royalty) at - 252,000 F for SEBOL. - 794,000 F for B & 0 - 414,000 F for LES PINS, -Add to it, in the very alternative. pronounce the judicial termination of the agreement to the wrongs exclusive to MC DONALD'$ and order it to pay - to SEBOL 9,600,000 F. • to B N O 22,200,000 F. - * LES PINS 13,250 0FD F. - 1N1 COLLORAFI 2,000,000 F, • Order provisional enforcement of the judgment to be made and in particular on e : ersameni do the amount of the losses. M. COLLORAFI and the claimant companies not to be required to vacate the premises until they have been compensated for their loss To allow MCDONALD'S to respond to the claimants' latest written submissions, the reporting judge authorised an exchange of notes in deliberation between the parties, which are respectively dated 24 and 30 March 1998, were placed on the file. The parties' arguments M COLLORAE and his companies consider that MODUNALD'S did not perform the agreements in good faith and that it abusively exploited the state of economic dependence in which the claimants found themselves, making it impossible for them to perform their financial obligations and thus itself creating the conditions for termination of the agreements Indeed, the absence of an exclusivity clause did not authorise MCDONALD to multiply sites in the catchment area of the first restaurant opened by M COLLORAFI at 0§67 86790/67 0 xe] 1x 65 1998 Icie CHAMBER PAGE G LA A Antibes-Centre by creating a second one a few hundred metres from it (Antibes- Nord) then two others a few kilometres away (Antibes-West and Vallauris) By proceeding thus it forced M. COLLORAFI either to accept a significant reduction of his turnover or to take over these establishments himself, which he did in Antibes Nord and Antibes-West and would have done for Vallauris had McDONALD'S not opposed it. But the initial balance of the agreements was thereby broken, the turnover achieved locally, with increased costs, no longer making it possible to generate positive results, as shown by the study placed before the court that M COLLORAFI had carried out by the expert GANDUR The turnover reached by the three restaurants of M COLLORAFI was 31,000,000 F in 1997 whereas McDONALD'S forecast figures were 52,060,0C0 F at cruising speed. The companies thus found themselves unable to pay the contractual fees (royalties) and they consider themselves entitled to raise against McDONALD'S the defence of non-performance. The conduct of MCDONALD'S also constitutes an abusive exploitation of a state of economic dependence within the meaning of article 8 of the ordinance of 1 December 1986 because the lessee-managers have, faced with the commercial conditions imposed by the franchisor, no other equivalent solution at their disposal and can only submit or withdraw The termination of the agreements by McDONALD'S for non-payment of fees (royalties) when it itself created the conditions no longer allowing the franchisees to pay them, is, as a consequence, abusive In view of these elements, M COLLORAFI considers that it is appropriate to dismiss MDONALD'S of its claim for recording of termination, to suspend the operation of the termination clause, to grant two years' time to the franchisee companies to pay their fees (royalties), which should be calculated at a reasonable level, in the alternative on expert valuation, and to order McDONALD S to pay them damages in compensation for the losses already suffered, namely 7,500,000 F. If the Court were to judge that termination is established, it should be to the wrongs and grievances of MCDONALD'S and the latter should be ordered to compensate the franchisee companies for the losses of margin over the years of the contract remaining to run, namely, for the three restaurants, 45,050,000 F. in compensation for the non-pecuniary loss he himself has suffered McDONALD'S replies that the claimants do not provide justification of the bad faith which they invoke against it Indeed, they freely entered into the franchise and lease-management (location-gérance) agreements that bind them and moreover they do not seek their nullity. These agreements contain no turnover commitment, the statements produced expressly say so and they constitute working documents setting out mere hypotheses. The agreements rule out any territorial exclusivity and reserve to the franchisor the possibility of setting up other restaurants nearby without the franchisees being able to plead a loss; this is a fundamental element of McDONALD'S policy The alleged abusive exploitation of a state of economic dependence is invoked out of context. Article 8 of the ordinance of 1 December 1986 must be read in relation to article ? and presupposes that one is in a situation aimed at distorting the free exercise of competition, which is not the case. The sanction is nullity of the undertaking, which is not requested by M. COLLORAFI 6:67 25:6086/50/67 iM15 1998 lere CHAMBER PAGE ? 205" The termination of the agreements is not abusive since it was imposed, after formal notice and in application of the contractual clauses, for non-payment of fees (royalties). The defence of non-performance is not applicable since MUDONALDS's breach of its obligations is not demonstrated. It was moreover never invoked by the claimants before the proceedings The judge has no power to accede to the request for revision of the amount of the fees (royalties), which would amount to modifying the terms of a freely formed agreement By way of counterclaim in the proceedings opened by M. COLLORAFi and his companies and, as its main claim in those it opened itself, MCDONALD'S asks the Court to record that the agreements have been terminated by operation of law since 2 January 1993, to order the companies of M COLLORAFI, jointly and severally with him, to pay the indemnities remaining due and to order the eviction of the claimant companies from the premises belonging to MCDONALD'S with payment of an occupation indemnity from 2 January 1998 The grounds of the decision ON THIS BASIS On the joinder of the proceedings, Whereas the two sets of proceedings brought are manifestly linked and their joinder is requested by the parties, the Court will order it: On the claims of M COLLORAFI and his companies, Aient que les pares sor les par plusieurs contras de licence et de cuition geranise doit That these agreements contain no territorial exclusivity clause for the benefit of the licensee or lessee-manager. That on the contrary in the six agreements concerned, in different forms and in different articles, they expressly rule out any protection on this ground and reserve the right for MCDONALD'S to set up restaurants even in an adjacent zone (article 28 of the licence agreements) and without the lessee-manager being able to plead the loss caused to the business. That exclusivity is moreover not a consubstantial element of franchising. Whereas, on the other hand, the agreements contain no commitment by the franchisor as to turnover and operating results. That the elements invoked by the claimants appear on mere working documents clearly designated as such and constituting mere hypotheses, whereas MI COLLORAFI and his companies therefore cannot invoke a violation of the contractual clauses in support of their claim, But that they allege that the agreements were performed in bad faith, which it is for them to demonstrate. In this connection the Court notes that the installation of the second MCDONALD'S restaurant in Antibes-Nord found its justification in the need, for the franchisor, to counter the competition of a new Quick establishment which included a drive-through service, which was not the case at Antibes-Nord and for which M. COLLORAF: had put himself forward as a candidate. Vot ø1:5} 8$6086/58/6 wt.. lers CHAMBER PAGE & MCDONALD'S granted him the operation, each party having, in this instance, acted in accordance with its interests without bad faith being capable of being invoked. That the two other sites, a few kilometres away, fit into the policy of MCDONALD'S of densifying the network, which M. COLLORAFI may criticise and deplore but which he could not claim to be unaware of, the terms of the agreements previously mentioned being sufficiently explicit on this point. That for one of these restaurants (Antibes-West) he was able to reach an agreement with MADONALD with a lighter investment formula for him, That an adjustment of his fees (royalties) was granted to him. That the franchisor's refusal for the Vallauris site is justified by the fact that MI COLLORAFI already operated three restaurants of the brand and that the financing of the second had posed some problems, That the claimants therefore do not establish that in all of these operations MCDONALD'S acted in bad faith; Whereas its conduct cannot either be considered an abusive exploitation of a state of economic dependence, as the claimants allege, does not aim to distort the play of competition within the meaning of article 7 of the ordinance of 1 December 1986 and results from the implementation of contractual clauses of which M COLLORAFI and his companies moreover do not seek nullity. Whereas it therefore emerges from the considerations set out above and without going into the detail of the management elements provided by the parties, that if the siting policy of McDONALD'S modified the operating conditions of the establishments managed by M COLLORAFI, it is not shown that it was pursued in bad faith or exclusively and that it was the sole cause of the deterioration of the results. That it was incumbent on M. COLLORAFFI in these conditions to negotiate with MCDONALD a possible revision of the fees (royalties) but that it is not for the judge to modify the terms freely agreed by the parties in their agreements: That, on the basis of the elements in its possession, the Court does not consider it should grant the companies concerned the two-year period which they request for the settlement of the unpaid fees (royalties): Whereas, consequently, the Court, reserving the right to examine below the validity of the termination which MCDONALD asks it to record and its consequences, will declare M COLLORAFI and his companies unfounded in all their claims for damages, for modification of the fees (royalties) and for the granting of time, as well as in their request for an expert report intended to determine them, and dismiss them; On the claims of McDONALD'S. Whereas McDONALD'S asks, both in its writ against LES PINS and in its counterclaims against M COLLORAFI, SEBOL and B & O, to record the termination of the licence and lease-management (location-gérance) agreements entered into between them, to order them to pay the unpaid fees (royalties), to order the eviction of the claimant companies from the premises, with payment of an occupation indemnity, and to award it damages for abusive proceedings. TI • ET 1$1:51798 iSt CHAMERE PAGE" L07 A. Whereas it is not disputed by these companies that they have ceased to pay the fees (royalties) regularly since 1997. That formal notices in accordance with the terms of the agreements were sent to them on 27 November 1997, That, in the absence of payment on their part, termination occurred by operation of law and was notified to them by LRAR of 2 January 1998 and by bailiff. That the Court will therefore record the termination of the said agreements to the wrongs and grievances of the companies Whereas McDONALD'S establishes the amount of the unpaid sums owed by SEBOL at 1,85" 147.34 F.. by B & 0 at 1,933,518.87 F and by LES PINS at 504,474.42 F, which it justifies by producing its statements, which are not contested by the companies concerned. That the Court will therefore declare McDONALD'S well-founded in its claim on this ground and will order the said companies to pay it the sums indicated above with interest at the statutory rate as regards SEBOL and with contractual late-payment interest at the bank base rate plus 3 points for B & O and LES PINS (article IX 2 of the lease-management agreements), depending on the due dates and the formal notices as indicated in the operative part below with capitalisation of interest as requested by McDONALD'S in its writ of 30 January and its written submissions of 5 February 1998: Whereas the amendments to the lease-management agreements placed before the court show that M. COLLORAFI remains jointly liable with the lessee-managers for the performance of the clauses of the agreement, he will be ordered jointly and severally with each of his companies to pay the same sums Whereas by bailiff's writs dated 2 January 1998, McDONALD'S gave notice to the three companies SEBOL. B & O and LES PINS to leave on 5 January the premises they occupy, That they did not comply and continue to occupy the premises in fact, That there is therefore ground to order their eviction in the terms requested with handing over of the keys and accounts, the inventory of existing items being drawn up through a bailiff and the obligation to vacate being accompanied by a penalty payment, as indicated in the operative part below, and to order them to pay an occupation indemnity from 5 January 1998, the date on which the premises were to be vacated, until that of the bailiff's report recording the evacuation, the amount of which will be fixed by the Court to double the daily fee of 1997, i.e. 16,000 F per day for SEROL e LES PINS and 24,000 F per day for B & O as requested by MODr VALD'S ci povi take account of the unlawful nature of remaining in the premises. ares interêts au tax legal eur wi! sums from the service of the present judgment Whereas McDONALD'S will be granted formal acknowledgement, as it requests, that it reserves the right to supplement its claims in light of the conditions of return of the businesses unlawfully occupied Whereas, finally, MaDONALD S claims a sum of 109,000 F in damages and interest for abusive proceedings but it does not show any specific harm attributable to the fault of Mr COLLORAFI and his companies that is not covered by the compensation in the judgment to be delivered On the other claims. eSTGT -86/S8:52 :u. i80908 KIE CHAMBRE PAGE I0 Whereas the sentences relate to unrecovered debts or to urgent measures intended to remedy an act of unlawful interference, provisional enforcement appears necessary and the Court will order it subject to McDONALD'S providing a bank guarantee of an amount equal to that of the unpaid fees: Whereas McDONALD'S had to incur, in order to have its rights recognised, costs not included in the costs of proceedings which it would be inequitable to leave to its charge, the Court will order jointly and severally Mr COLLORAFI and the companies SEBOL, B & O and LES PINS to pay it the sum of 50,000 F pursuant to article 700 of the NCPC, dismissing the remainder P C M The Court, ruling by an adversarial judgment at first instance, - Joins the cases no. 97 O62466 and 98 010823 • Dismisses Mr Bermard COLLORAFI and the companies SEBOL, B &: ro and LES PLIS of all of their claims. • Records the termination by operation of law on 2 January 1998 of the lease-management agreements (*location-gérance*) and licence agreements concluded between SA M DONALD'S on the one part and on the other the companies SEBOL and Mr Bernard COLLORAFI on 31 August 1987, B & O and Mr Bernard COLLORAF on 9 October 1990, LES PINS and Mr Bernard COLLORAFT on 19 June 1997, by the effect of the termination clause inserted in each of the contracts, - Orders the eviction of the companies SEBOL, B & O, LES PINS and of Mr Bernatc COLLORAFi, as well as of all occupants through them of the fast-food restaurant businesses located respectively - Shopping arcade of the Carrefour store, Chemin de St Claude, 06600 Antibes, - 1190 route de Grasse, 06600 Antibes, - 32 rue de Cannes, 06160 Antibes-Juan les Pins and orders each of these companies and Mr Bernard COLLORAFI to hand over to the owner of the businesses, SA MCDONALD'S, .. the keys of the restaurants, - the list of staff, the employment contracts as well as the files relating to each of the employees in order to allow the normal continuation of the employment contracts, - the operating accounts up to the day of the abandonment of this operation. - Rules that the companies and Mr Bernard COLLORAFI must comply with all of the above provisions on pain of a joint penalty payment between Mr Bernard COLLORAFI and the company SEBOL for the restaurant Antibes 1 of 32,000 F (thirty-two thousand francs) per day, Mr Bernard COLLORAFI and the company B & O for the restaurant Antibes 2 of 17,000 F (thirty- seven thousand francs) per day, Mr Bernard COLLORAFI and the company LES PINS of 26,350 F (twenty-six thousand three hundred and fifty francs) per day. after ten days, payable from the service of the present judgment with a limit of ?? days - Appoints Maîtres ZONINO, bailiffs, 184 avenue Paul Cezane Le Cottage 06800 CAGNES SUR MER, as officers to record, in the presence of both parties, in each restaurant, the inventory of the stock of goods and consumables, operating items, furniture and equipment of the business and the state of the cash, 1tUD ite"4 44222 :505 170* PACE !! fa. •= : 6] - Orders jointly and severally to pay to SA MCDONALD S the company SEROL and Mr Bernard COLLORAFI the sums of 1,967,147.84 F (one million nine hundred and sixty-seven thousand one hundred and forty-seven francs eighty- four centimes) as unpaid fees with interest at the statutory rate from 1 August 1997 (LRAR of 22 07) on 1,265,300 F (one million two hundred and sixty- five thousand three hundred francs), from 1 December 1997 (LRAR of 2? ¡ii) on 361,800 F (three hundred and sixty-one thousand eight hundred francs), from 1 January 1998 (art 11 4) on 259,147.84 F (two hundred and fifty-nine thousand one hundred and forty-seven francs eighty-four centimes). and 16,006 F (sixteen thousand francs) as occupation indemnity per day from 3 January until the day of the bailiff's report whose appointment is requested above, with interest at the statutory rate. the company B & O and Mr Bernard COLLORAFI the sum of 1,533,545.37 F (one million five hundred and thirty-three thousand five hundred and forty-five francs eighty- seven centimes) as unpaid fees with late-payment interest at the bank base rate increased by 3 points for each instalment from the date on which it should have been paid (art 2 3 of the contract) and 24,000 F (twenty-four thousand francs) as occupation indemnity per day, from 2 January 1998 until the day of the bailiff's report whose appointment is requested above, with interest at the statutory rate. the company LES PINS and Mr Bernard COLLORAFT the sums of 501,174.42 F (five hundred and four thousand four hundred and seventy-four francs forty-two centimes) as unpaid fees with late-payment interest at the bank base rate increased by ? points for each instalment from the date on which it should have been paid (art ix 2 3 of the contract) and 16,000 F (sixteen thousand francs) as occupation indemnity per day from 2 January 1998 until the day of the bailiff's report whose appointment is requested above, with interest at the statutory rate. • Rules that the interest owed to SA McDONALD will itself bear interest in accordance with article 1154 of the Civil Code - Grants formal acknowledgement to SA MCDONALD'S that it reserves the right to supplement its claims ae: " the conditions of return of the businesses unlawfully occupied by Mr Bena: COLLORAFI and the three companies and to claim any damages and interest justified by the harm that might appear. - Dismisses SA MCDONALD'S of its claim for damages and interest for abusive proceedings, - Orders provisional enforcement of the decision to be delivered subject to the provision by SA MCDONALD'S of a bank guarantee equal to the sums awarded as unpaid fees. - Orders jointly and severally the companies SEBOL, B & O, LES PINS and Mr Berne COLLORAFi to pay SA MCDONALD'S the sum of 50,000 F (fifty thousand francs) under article 700 of the NCPC, dismissing the remainder and the costs, of which those to be recovered by the registry are assessed at the sum of 324.99 F incl. VAT 1st case, App 10.50 - - 42.68 + Emol :84.80 + VAT 49.02 = 287.00 F) + (2nd case Af 10.50 + AfT 21.0? VAT 6.49 = 37.993 Entrusted at the hearing of 7 February 1998 to Mr VASSEUR as Reporting Judge 7§67 85798/65 PAGE 17 ZO A iere CHAMBRE Placed under deliberation on 16 March 1998 Deliberated by Messrs VASSEUR, DECHIN, FILHOULAVD and delivered at the public hearing at which sat: MonElzuT CAEN. PRESIDENT, Messrs VASSEUR, BLANCHARD, GERONIMI, AUBERGET nute du jugen et ege signe par de prestent de délibéré et par Mademoiselle DANCHOI, REGISTRAR, dantette Mr VASSEUR Reporting Judge Scunett :85:6186758/67