Writ of summons

DE HMG TU Martine BOSC Advocate at the Bar of Grasse "face Leon Noel 06400 CANNES 04.92.98 (01 Fax: 04.93 38.06.94 Palais no. 109 WRIT OF SUMMONS BEFORE THE ENFORCEMENT JUDGE OF THE REGIONAL COURT (TGI) OF GRASSE IN THE YEAR NINETEEN HUNDRED AND NINETY-EIGHT and on the AT THE REQUEST OF: 1°) The company SEBOL, S.A. whose registered office is Shopping Centre CARREFOLR, Chemin de Saint Claude, ANTIBES (06600), represented by the Chairman of the Board of Directors, Monsieur Bernard COLLORAFI, 2°) The SARL B et O, whose registered office is Rond Poin: Weiseller, Route de Grasse, ANTIBES (06600), represented by its manager Monsieur Bernant COLLORAFI. 3°) The SARL LES PINS, whose registered office is 32 avenue de Cannes, JUAN LES PIN 161601, represented by its manager. Municar Permani COLIORAF 7°) Monsieur Bernard COLLORAFI, de actionali: irangao. ne le 1 12.1945 à solost misie) company director residing at 21 E cher de l'Enielle 06110 LE CANNET Having as counsel Maître Jean Paul CLEMENT, Advocate at the Paris Bar, 78 avenue Mozan 75016 PARIS And Maitre Martine BOSC, Advocate at the Bar of Grasse domiciled at CANNES (06400), 16 rue Léon Noël I, the undersigned bailiff the company MIC DONALD'S FRANCE, public limited company with a capital of 180,000,00OF registered in the RCS of VERSAILLES B 722 003 936 whose registered office is 1re Gustave Eiffet 78045 GUYANCOURT CEDEX ELECTING DOMICILE AT THE OFFICE OF DELASCHLONINO ERCOLI BAILIFFS at SAINT LAURENT DU VAR 06/02, IS% avenue Paul Cezanne Le Cottage C 05-DE-1990 DE HI G ADVOCATE F.03 SUMMON TO APPEAR before Madame the Enforcement Judge at the Regional Court (TGI) of Grasse sitting at the Law Courts of the said town U613U GRASSE On TUESDAY Q MIN 1098 at 2 p.m. To satisfy the provisions of article 19 of the decree of 31 July 1992, the provisions of articles 11 to 14 of the said decree are reproduced below: . article 11. the parties defend themselves; they have the option of being assisted or represented - article 12 the parties may be assisted or represented by * a lawyer * their spouse * their relatives or in-laws in the direct line * their relatives or in-laws in the collateral line up to and including the 3rd degree * persons exclusively attached to their personal service or to their business The State, the regions, the départements, the communes and their public establishments may be assisted or represented by a civil servant or an agent of their administration The representative, if not a lawyer, must establish a special power of attorney - article 13 the procedure is oral; the claims of the parties or the reference they make to claims they may have set out in writing are noted in the file or recorded in a record of proceedings. - article 14 during proceedings any party may also set out grounds by letter addressed to the enforcement judge, provided that it establishes that the opponent was aware of them before the hearing by registered letter with acknowledgement of receipt. The party who uses this option may not appear at the hearing. The judgment delivered in these conditions is adversarial Nevertheless, the judge always has the option of ordering that the parties appear before him DE HIMG AVOCATS POUS The COMMERCIAL COURT OF PARIS delivered on 18 MAY 1998 a judgment by which it *- dismisses monsicur dernara COLORMI Ei l05 sociérés SEBOL, B et O, and LES FINS of all of their claims, dEçii is i janvier 1998 des contrats de Ivention gérerco ci da firendo conclus entre la SA M DONAID'S on the one hand and on the other ies soritiés sagon et Harnard COLLCANFI 1E ée Horien Bernard COLLORAFI on 9 October 1996, LES PINE ei Monsieur Hernaza COLIORAFI on 18 June 1997, by the effect of the termination clause inserted in each of the agreements - orders the eviction of the companies SERON, " E: 0, LES PINS and of Mansieur Beznard COLLORAFI, cosmo Et dul accupants de lpara chefs res fonds de cremerte de restaraction suuldo situa iespect ivemert i marchande du mügasin CARIE:D Cienin de Saint Claude, 06600 - ANTIBES • 1390, route de Grasse, 06605 - M7ZD57 • 32, rue de Cannes, 06160 - ENTES and orders each of these companies and Mr Bernard COLIGRAFI to hand over to the owner of the business, SA MC DONALD'S: , the keys of the restaurants dossiers relatife Persernel, the employment contracts as well as the ă chacun ley sälerié, in order to allow the postauito netmalo des cuntrats de travail - the accounts to l'aspinitation jusgre: joua do l'abandon du cette enfloitation - rules that the companies and Monsinur deznilü COLLOMEI shall comply with all of the above provisions subject to a penalty • A. BOIRaId EDITORAFI and the company SMOL DOu: the restaurant ANTIBES I of 36,000 francs (trenta-deux-zilla toreal pr jour BeInara COLlORAFi et La SociAto à es O pow le restacrant te ANTIBES 2 of 37,000 F. (trente-tope-niits freucs) per day . Mr Bernard COLLORAFI and the company INS PINS of 2$ 357 F. ¡vingt- six-mille-trois-cept-cinouente Izancol Fal jour after ten working days from the service of this judgment with a limit of 30 days| romane Muitzes MONtÃO, bailiff, 1ãt avenue Pani Cerage le Cottage, 06300 - CAGNES SUR VER as officer to record, with both parties present, in each restaurant, the inventory of goods and consumables, operating items, furniture and equipment of the business and the state of the cash holdings - orders, jointly and severally, to pay SA ME DONAtO 5 the company 5580l and Mr Bernard COLION F 105 sums of 1 867 347,58 Eranco un million tut dent ee rance sept mille seux cant quararie dept francy quatre ringt quatro centives) as unpaid fees (royalties) with interest at the legal rate: from 1 August 1897 DE 4 4G AVOCATS Jur 1 255 900 frincs (un millior drun pent soixante SiX MÉLIE Liois cents francs) from 1 December (IRAR de 27/11/ on 3f1 800 Irancs itIois cent soixante et mille huit cants francs) from 1 January 1998 (art. iuz 239 i4%,89 freres laere cent trante neuf mille cent quarante soci iranes quatie vingt quatre D00 trancS français e of indemnity of occupation per day from 2 January 198B until the day of the bailiff's record whose appointment is requested above with interest at the legal rate The company B et 0 and Mr Bernard COLIORATI 1E NOTrE dE ¿ 333 548,57 francs cant quarante franco quatie vingt sopi unpaid fees (royalties) with late-payment interest at the base bank rate plus 3 points per instalment from the date on which it should have been paid (art. IX 2 3 ÷ agreement) (vingt-quatre mille • as indemnity of occupation per day, from 2 Jarrior 1991 until the day of the bailiff's record whose appointment is requested above with interest at the legal rate • the company MES PINS and Mr Bernard COLLOAT: des Domos de : 5114 474,47 fees (royalties) unpaid with late-payment interest at the base bank rate plus 3 points for each instalment from the date on which it should have been paid. =* 2 3 of the agreement) as indemnity of occupation per day from 2 1§90 until the day of the bailiff's record whose appointment is requested above with interest at the legal rate - rules that the interest due to SA 56 MC DIMALD # DaILeront eux-même interest in accordance with article 119% of the CIVIL CODE - takes note that SA ME DONALD's reserves the right to perfect conditions of restituticu curIce ursupis illicitement par M. Pernord CONNORArI et sas trois companies and to claim all dusmaçon Et intérdeo fustifies par les losses that would appear DONALD O N claim for damages and interest for abuse of process - Orders provisional enforcement of the decision to be made SQUE subject to the provision by SA NO DOMALD'S of a bank guarantee equal to the sums awarded as unpaid fees (royalties) au citi? es acorvences jugeydes - Orders, jointly and severally, the companies PINS BE MOnSIeuL BOrnErO COLIONAFI to pay to the company ME DONALD'S the sum of SD 9D0 franos ¡cinquante midin francol under article 700 d NOPC dismissing the remainder including those *ecOUTECI par 1§ yreffe Jiquides à 1a 30100 do 324,94 franss T1C flère causo App 10,50 + AFf 42.56 + Enci 139,20 + IVA 45.02 = 287.00 F,l + Zème casso : AEf 10,50 * ArE 2i,00 + ira 5,59 = 37,55! » DE H MO AUDCATS the companies SEbUL, 860 and L5S FINS and Monsior BOrnard COLLORAE: have appealed on 27 May 1998 against this judgment and have summoned the company MC DONALD'S to appear on 25 June 1993 i Jnsmros " the hearing of the summary proceedings of the First President of the Court of Appeal of PARIS, with a view to having the provisional enforcement suspended.. * Having regard to article 52€ of the NCPC, suspend the provisional enforcement of the judgment delivered by the Commercial Court of PARIS on 18 May 1993, until the Court of Appeal of PARIS has ruled, both as regards the eviction and the orders to pay Take note that the three claimant companies offer to deposit in such account as the President may wish to designate or to place in escrow in the hands of a bailiff, 10 Aitonnies séquestre • The company SERCi in some de 105 Dig Erani == 2e ire des vanes propost enle de entre le te jauries et entuite ici proportional fees (royalties) monthly mensuelles - The company D40 the sum of 731 TIl francs 85 as proportional fees (royalties) between 1 January and April 1998 and then the proportional fees (royalties) monguelleg - The company DES PINS the sum of 4/3 G00 S-AnCS BT as proportional fees (royalties) daretes dentes page ver et benzelles Order the company Mo D0Nzulü to pay = each of the three companies and to Monsieur Berdid COis the sum of 10,000 francs under article 700 of the NGFE » By several writs of Maitre ZONINO, bailiff, dated 27 May 1998, the company VIC DONALD'S FRANCE proceeded to a service entitled "SERVICE OF JUDGMENT-APPEAL. AND ORDER TO PAY". • AT the terms of which an order is made to IMMEDIATELY AND WITHOUT DELAY vacate the premises and hand over the keys of the restaurant, the list of staff and the operating accounts Under the terms of article L 311-:2-1 of the Code of Judicial Organisation the Enforcement Judge hears difficulties relating to enforceable titles and disputes that arise on the occasion of forced enforcement €5: 23 DE H MG AVOCH!S - E. 1°/ DIFFICULTY RELATING TO THE ENFORCEABLE TITLE The judgment thus delivered by the Commercial Court of PARIS and dated 18 May "orders the provisional enforcement of the judgment to be made.. " Thus, this judgment is not accompanied by provisional enforcement since the latter refers to a judgment "to be made" The company MC DONALD'S FRANCE therefore cannot claim to pursue forced enforcement of the judgment delivered by the Commercial Court of PARIS dated 18 May 1998 2°: DISPUTES RELATING TO THE FORCED ENFORCEMENT a) the documents served by Maître ZONINO on 27 May 1998 are made "AT THE REQUEST OF: SOCIETE ANONYME MC DONALD'S FRANCE. I RUE GUNTAVE HIFFEI.. 78045 GUYANCOURT CEDEY" No mention is made of the body that legally represents the public limited company MC DONALD'S FRANCE; yet, a legal person can validly act only through its legal representative This ground constituting a plea of inadmissibility, the claimants do not have to establish any prejudice In these circumstances, the documents served on 27 May 1908 must be declared null and void b) the same documents also incur a second criticism since they do not contain the particulars required by article 194 of the decree of 31 July 1992, particulars which must be indicated on pain of nullity. This absence causes prejudice to the claimants since in particular, they were not told the date from which the premises must be vacated whereas, given the commercial activity carried out in these premises, it is imperative that this date be indicated in order to allow their vacation in good conditions Consequently, these documents incur nullity 05-46-195C DE IM G AVOCATO p.0E IN THE VERY ALTERNATIVE: The claimants ask to benefit from the provisions of article 8 paragraph 2 of the decree of 31 July 1992 under which, after service of the order to pay, the Enforcement Judge has jurisdiction to grant a grace period Indeed, the company MC DONALD'S FRANCE let it be known that "to make an example", it intended to enforce at all costs the judgment of the Commercial Court of Paris, which gives it complete satisfaction, whereas other unfavourable decisions have been delivered against it on the initiative of other franchisees, notably Monsieur DE TOURRIS and the company SPC POISSY (judgments of the Court of Appeal of Versailles of 21 11 1994 and 30 04 1998) It should be known that currently many franchisees NIT () dispute the contractual obligations imposed by the company MC MONALD'S in its lease-management agreements because "the system has become unsustainable because the recently opened units have sales lower than the older ones for a spiralling rent (of more than 50%)" (Cf. the magazine "LESSENTIEL du MANAGEMENT, 1°4C June 98). As proof of their good faith, the claimants offer to deposit the sum of 2,800,000 francs in return for the granting of a grace period that will allow them to continue operating the two restaurants concerned, it being moreover recalled that, in any event, the companies that operate the said restaurants are obviously accountable for their operations The flagrant disproportion between the economic strength of the parties involved also justifies a period being granted until the final resolution of the dispute between the parties Monsieur COLLORAFI, who is the manager of the three companies that operate the restaurants concerned, has also personally committed himself financially; moreover, the orders made by the judgment of the Commercial Court of Paris are joint and several orders The company MC DONALD'S FRANCE has registered a provisional mortgage on the only real property belonging to Monsieur COLLORAFI, which constitutes his main residence Monsieur COLLORAH, as well as his wife, have as their only income the salaries paid to them by the companies that operate the restaurants. Monsieur COLLORAFI is defending his working tool: evicted, he would be completely deprived of resources and, in the short term, homeless while the trial is not over since Monsieur COLLORAN and the companies concerned have appealed against the judgment delivered by the Commercial Court of Paris. SE HIG AVOCATS FOR THESE REASONS ---_ - Note that the judgment delivered by the Commercial Court of Paris dated 18 May 1998 is not accompanied by provisional enforcement Consequently, Declare and rule that the company MC DONALD'S FRANCE cannot undertake forced enforcement measures - Note that the orders to pay served on 27 May 1998 at the request of the public limited company MAC: DONALD'S France do not contain the indication of the legal representative of this legal person, Consequently, Declare and rule that the said orders are null and of no effect without the claimants having to establish the existence of a prejudice - Note that the said orders do not contain the particulars required on pain of nullity, by article 194 of the decree of 31 July 1992, and that this omission necessarily causes prejudice to the parties receiving the document, who are not informed of the arrangements for challenge nor of the date on which the eviction is to take place. Consequently, Declare and rule that the orders served on 27 May 1998 are null and of no effect IN THE ALTERNATIVE, Having regard to the provisions of article 8 paragraph 2 of the decree of 31 July 1992 and those of article 510 of the NCPC. Grant the claimants a grace period of three months. Order the company MAC DONALD'S FRANCE to pay the sum of 10,000 francs under article 700 of the NCPC as well as the entire costs WITHOUT PREJUDICE