Kevin P. Whiteford, CSBN: 14291 6
`SERLIN & WHITEFORD, LLP
`701 E Street
`Sacramento, CA 95814
`(916) 446—0790
`Telephone:
`(916) 446-0791
`Facsimile:
`
`Attorneys for Plaintiff
`BANC OF AMERICA LEASING & CAPITAL, LLC
`
`:“wmmmummmwflmm
`7/2/2019
`IE E
`E [I
`
`Electronic: Ily
`
`MM
`
`Br
`
`SUPERIOR COURT OF THE STATE OF CALIFORNIA
`FOR THE COUNTY OF SAN MATEO
`Southern Branch: Hall 0f Justice & Records
`BANC OF AMERICA LEASING & )
`CASE NO.
`18CIV01601
`CAPITAL, LLC,
`Unlimited Civil
`) DECLARATION OF KEVIN P.
`) WHITEFORD SUPPORTING PLAINTIFF'S
`) MOTION TO COMPEL DEFENDANTS T0
`) SERVE FURTHER RESPONSES T0
`EBONYMEDIA OPERATIONS, LLC; CVG ) REQUESTS FOR ADMISSIONS
`GROUP, LLC; and DOES 1 through 50 )
`inclusive,
`
`DATE:
`TIME:
`DEPT:
`TRIAL:
`
`August 20, 2019
`9:00 a.m.
`Law and Motion
`None Set
`
`)
`)
`
`) )
`
`)
`)
`)
`
`Plaintiff,
`
`vs.
`
`Defendants.
`
`1.
`
`I, Kevin Whiteford, declare:
`I am an attorney at law duly licensed to practice before all the courts 0f the State of
`California and a partner at the law firm 0f Serlin & Whiteford, LLP, counsel of record for Plaintiff
`Bane of America Leasing & Capital, LLC (hereinafter “Plaintiff’) in the above—captioned matter.
`Ihave personal knowledge of the facts stated herein, and if called upon to do so, I could and would
`testify competently thereto.
`This action was filed by the Plaintiff 0n April 2, 201 8, seeking damages for breach
`2.
`of a commercial financing agreement (hereinafter the “C0ntract”). The Contract was originally
`between Oracle Credit Corporation, Defendant Ebony Media Operations, LLC, and CVG Group,
`LLC, but Oracle Credit Corporation assigned its interest in the Contract to Plaintiff.
`
`DEC. OF KEVIN P. WHITEFORD SUPPORTING PLAINTIFF'S MOTION
`To COMPEL FURTHER RESPONSES To REQUEST FOR ADMISSIONS
`
`1 -
`
`Bane ofAmerica Leasing. etc. vs. Ebony Media, eta, et al‘
`Case Number I8CIV01601
`
`10
`11
`12
`13
`14
`15
`l6
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`On March 4, 2019, I propounded Plaintiff‘s first sets 0f requests for admissions
`3.
`(hereinafter the “Requests for Admissions”) t0 each Defendant. At the time the Requests for
`Admissions were propounded, I also served each 0fthe Defendants with Plaintiff s first sets 0f form
`and special interrogatories, and document production demands. Attached hereto as Exhibit A and
`incorporated herein by this reference are true and correct copies 0f the Plaintiff‘s first sets 0f
`Requests for Admissions propounded t0 each 0f the Defendants in this case.
`After requesting and obtaining two extensions of time t0 respond t0 this discovery,
`4.
`the Defendants’ lawyers, Randy Brown, served responses to the Requests for Admission (hereinafter
`the “Responses) 0n May 13, 2019. Attached hereto as Exhibit B and incorporated herein by this
`reference are true and correct copies ofboth Defendants’ responses t0 Plaintiff” s first sets ofRequests
`for Admissions in this case.
`As can be seen from a review 0fthe documents, the Requests for Admissions and the
`5.
`Responses are virtually identical for both Defendants, so the discuss 0fthe Requests for Admission
`and Responses in this motion applies equally t0 both.
`The Responses consist of nothing more than objections. Defendants did not admit
`6.
`0r deny a single one of the Requests for Admissions. The same can be said 0f the Defendants’
`responses to all 0f Plaintiff‘s written discovery in this case. None 0f the Defendants’ responses to
`Plaintiff’s discovery were verified because they contained n0 substantive information. Defendants
`even refused t0 answer form interrogatory 1.1, which merely asks the Defendants t0 identify who
`helped prepare the Defendants’ responses!
`I attempted t0 meet and confer with Defendants’ lawyer, Randy Jones, regarding all
`7.
`0f the written discovery Plaintiffpropounded t0 the Defendants. I first sent Mr Jones a letter dated
`May 20, 20 1 9, discussing each ofthe Requests for Admissions and why the objections thereto were
`not well taken. Attached hereto as Exhibit C and incorporated herein by this reference is a true and
`correct copy 0fmy May 20, 2019 letter to Mr. Jones. Mr. Jones did not respond t0 this letter.
`Having received n0 response t0 my May 20, 2019 letter, I next called Mr. Jones on
`the telephone 0n May 3 1, 2019, t0 discuss the Responses t0 the Requests for Admissions, and the
`problems with all the Defendants’ responses to the Plaintiff’s written discovery. During our
`
`8.
`
`DECA 0F KEVIN P. WHITEFORD SUPPORTING PLAINTIFF'S MOTION
`T0 COMPEL FURTHER RESPONSES T0 REQUEST FOR ADMISSIONS
`
`2 -
`
`Banc ofAmerica Leasing, etc. vs. Ebony Media, etc‘, et a1.
`Case Number 18C1V01 601
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`l9
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`telephone conversation, Mr. Jones admitted that the Defendants” discovery responses contained n0
`substantive information because the Defendants would not even cooperate with their counsel t0
`prepare responses.
`I declare under penalty ofperj ury under the laws 0fthe State OfCalifornia that the foregoing
`is true and correct. Executed 0n July L, 2019, at Sacra
`
`KEVIN P. WHITEFORD
`
`S:\Active Files\banc 0f america\eb0ny media\c0urt docs\disc0very motions\rfa.motion lo compeldec of kw.wpd
`
`lO
`ll
`12
`13
`l4
`15
`16
`17
`18
`l9
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`DEC. 0F KEVIN P. WHITEFORD SUPPORTING PLAINTIFF'S MOTION
`To COMPEL FURTHER RESPONSES To REQUEST FOR ADMISSIONS
`
`Banc ofAmerica Leasing, etc. vs. Ebony Media, eta, e! al.
`Case Number 18CIV01601
`
`

`

`lO
`ll
`l2
`l3
`l4
`15
`l6
`l7
`l8
`l9
`20
`21
`22
`23
`
`25
`26
`27
`28
`
`Exhibit A
`
`DEC, 0F KEVIN P. WHITEFORD SUPPORTING PLAINTIFF‘S MOTION
`T0 COMPEL FURTHER RESPONSES To REQUEST FOR ADMlsSIONs
`
`Banc ofAmerica Leasing, elc. vs. EbonyMedia. etc” e1 a1;
`Case Number 18CIVOI601
`
`

`

`(fl
`
`(
`
`Kevin P. Whiteford, CSBN: 142916
`SERLIN & WHITEFORD, LLP
`701 E Street
`Sacramento, CA 95814
`Telephone:
`(916) 446-0790
`(916) 446-0791
`Facsimile:
`Attorneys for Plaintiff
`BANC OF AMERICA LEASING & CAPITAL, LLC
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`SUPERIOR COURT OF THE STATE OF CALIFORNIA
`FOR THE COUNTY OF SAN MATEO
`Southern Branch: Hall of Justice & Records
`BANC OF AMERICA LEASING & )
`CASE NO.
`18CIV01 601
`CAPITAL, LLC,
`Unlimited Civil
`PLAINTIFF’S FIRST SET OF REQUESTS
`FOR ADMISSIONS PROPOUNDED TO
`DEFENDANT EBONY MEDIA
`OPERATIONS, LLC
`
`Plaintiff,
`
`VS.
`
`EBONY MEDIA OPERATIONS, LLC; CVG
`GROUP, LLC; and DOES 1 through 50
`inclusive,
`
`VVVVVVVVVVVV
`
`Defendants.
`
`PROPOUNDING PARTY: Plaintiff Banc 0f America Leasing & Capital, LLC
`RESPONDING PARTY:
`Defendant Ebony Media Operations, LLC
`SET NUMBER:
`One (1)
`Defendant Ebony Media Operations, LLC is hereby requested by PlaintiffBanc ofAmerica
`Leasing & Capital, LLC t0 admit the facts set forth below, and the genuineness 0f each document,
`a copy ofwhich is attached t0 this Request.
`EACH OF THE FOLLOWING FACTS IS TRUE:
`REQUEST NO. 1.
`In April 201 7, Mark D. Walker executed Payment Plan Agreement Number 1 1375 0n behalf
`0f Defendant Ebony Media Operations, LLC (hereinafter referred t0 as “EBONY”), as EBONY’S
`Chief Operating Officer.
`
`PLAINTIFF’S l“ SET 0F REQUESTS FOR ADMISSIONS
`PROPOUNDED To EBONY MEDIA OPERATIONS, LLC
`
`1 -
`
`Banc ofAmerica Leasing, etc. vs. Ebony Media, eta, er a1.
`EXHIBIT A
`Case Number 18CIV01601
`
`

`

`REQUEST NO. 2.
`Mark D. Walker was authorized by EBONY t0 execute Payment Plan Agreement Number
`11375 0n behalf 0fEBONY at the time he did so.
`REQUEST NO. 3.
`In April 201 7, Mark D. Walker executed Payment Schedule (Software) N0. 86755 0n behalf
`0fEBONY, as EBONY’S Chief Operating Officer.
`REQUEST NO. 4.
`Mark D. Walker was authorized by EBONY t0 execute Payment Schedule (Software) N0.
`86755 0n behalf ofEBONY at the time he did so.
`REQUEST NO. 5.
`In April 2017, Mark D. Walker executed Amendment N0. 1 to Payment Plan Agreement
`Number 1 1375 dated April 18, 2017 (hereinafter the “AMENDMENT”), 0n behalf 0f Defendant
`CVG Group, LLC (hereinafter referred t0 as “CVG”), as CVG’s Managing Director.
`REQUEST NO. 6.
`Mark D. Walker was authorized by CVG t0 execute the AMENDMENT 0n behalf ofCVG
`at the time he did so.
`REQUEST NO. 7.
`I On behalf 0f EBONY, Mark D. Walker signed Oracle Ordering Document number CPQ-
`3271 14—1, a copy of which is attached hereto as Exhibit D.
`REQUEST NO. 8.
`Pursuant t0 the terms 0f Payment Plan Agreement Number 11375, Payment Schedule
`(Software) N0. 86755, and Amendment N0. 1 to Payment Plan Agreement Number 11375 dated
`April 18, 2017 (hereinafter refefied t0 together as the “CONTRACT”), Oracle Credit Corporation
`(hereinafter “OCC”) financed and paid for the goods and services identified in Oracle Ordering
`Document number CPQ-3271 14—1, a copy 0f which is attached hereto as Exhibit D.
`RES QUEST NO. 9.
`EBONY received instructions on how to download the software and cloud services financed
`under the CONTRACT.
`
`PLAINTIFF’S I“ SET OF REQUESTS FOR ADMISSIONS
`PROPOUNDED To EBONY MEDIA OPERATIONS, LLC
`
`2 -
`
`Banc ofAmerica Leasing, etc‘ vs. Ebony Media, eta, et a1.
`Case Number 18CIV01601
`
`10
`ll
`12
`13
`14
`15
`16
`l7
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`RESQUEST NO. 10.
`EBONY utilized in its business the software and cloud services identified in Oracle Ordering
`Document number CPQ-3271 14-1, a copy of which is attached hereto as Exhibit D.
`REQUEST NO. 11.
`In August 201 7, OCC assigned its rights under the CONTRACT to PlaintiffBanc ofAmerica
`Leasing & Capital, LLC.
`REQUEST NO. 12.
`EBONY has not made the 11 quarterly payments of $21,007.75 each set forth in the
`CONTRACT’S Payment Schedule.
`REQUEST NO. 13.
`On November 1, 201 7, the EBONY breached the CONTRACT by failing and refusing to pay
`the installment payment then due pursuant to the terms of the CONTRACT.
`REQUEST NO. 14.
`EBONY has never made any payments to OCC in compliance with the terms of the
`CONTRACT.
`RE!QUEST NO. 15.
`EBONY has never made any payments to Plaintiff in compliance with the tenns of the
`CONTRACT.
`REQUEST NO. 16.
`The principal balance due on the CONTRACT from EBONY to Plaintiff is $241 ,028.71.
`EACH OF THE FOLLOWING DESCRIBED DOCUMENTS, COPIES OF WHICH ARE
`ATTACHED TO THIS REQUEST, IS GENUINE:
`REQUEST NO. 17.
`Payment Plan Agreement Number 1 1375 , a copy of which is attached hereto as Exhibit A.
`REQUEST NO. 18.
`Payment Schedule (Software) No. 86755, a copy of which is attached hereto as Exhibit B.
`
`//
`
`//
`
`PLAINTIFF’S 1“ SET OF REQUESTS FOR ADMISSIONS
`PROPOUNDED To EBONY MEDIA OPERATIONS, LLC
`
`3 -
`
`Banc ofAmerica Leaxing, etc. vs. Ebony Media, eta, et al‘
`Case Number lSCIVOl 60!
`
`10
`ll
`12
`l3
`l4
`15
`l6
`17
`l8
`l9
`2O
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`REQUEST NO. 19.
`Amendment N0. 1 t0 Payment Plan Agreement Number 1 1375 dated April 18, 201 7 , a copy
`0f which is attached hereto as Exhibit C.
`REQUEST NO. 20.
`Oracle Ordering Document number CPQ-3271 14-1, a copy of which is attached hereto as
`Exhibit D.
`REQUEST NO. 21.
`Oracle Invoice Number 8041 561, a copy 0f which is attached hereto as Exhibit E.
`REQUEST NO. 22.
`Notification ofAssignment Letter dated August 1 1, 201 7, a copy ofwhich is attached hereto
`as Exhibit F.
`DATED: March é
`
`SERLIN & WHITEFORD, LLP
`
`, 2019
`
`KEVIN P. WHITEFORD
`Attorneys for Plaintiff
`BANC OF AMERICA LEASING &
`CAPITAL, LLC
`
`S:\Active Files\banc of america\ebony media\discovery\rfa.01 ‘wpd
`
`PLAINTIFF’S F" SET 0F REQUESTS FOR ADMISSIONS
`PROPOUNDED To EBONY MEDIA OPERATIONS, LLC
`
`4 -
`
`Banc ofAmerica Leasing, etc. vs. Ebony Media, eta, er a1.
`Case Number 18CIV01601
`
`lO
`ll
`12
`l3
`l4
`15
`l6
`l7
`18
`l9
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`ORACLE”
`
`Customer.
`
`EBONY MEDIA OPERATIONS, LLC
`
`1700 POST OAK BLVD
`
`I
`
`S
`
`PPA No.:
`Effem‘ve Date:
`
`Houston TX 77056
`\ a é; ES
`lg“BE! ~
`This Payment Plan Agreement (“PPA”) is entered into by Customer and
`Oracle Credit Corporation (‘OCC") for payment of Customer’s acquisition
`of the System. Each Schedule will incorporate the terms of this PPA to
`form a singte contract (“500mm") and pro'vlde transaction specific
`infomation, including me Sysbm Price and the System. The mstem is
`acquired from Oracle Corpmation. one o! its affiliate; an authorized
`distribution partner or any olher party providing the System (each. a
`”Supplier‘). Customer has acquired the System from the appfiwhle
`Suppfie: pursuant to the Order, which is subjectto an agreement (together.
`the *01der') governing the terms and conditions of Customer‘s right in the
`System. The Order will be spedfied in the Schedule. Customer agrees
`that the System mnsists of all products and sen‘noes specified m the Order
`for which fees are included in the System Pn'ce, together ,wnh sofiware
`upgrades, and updates received from suppon relamd to xhe System
`(“System") Customer retains its right against Supplier under the Order to
`make any claims and merefora agrew to make such daims solely against
`the Suppliet. Except as provided under this Connaa. such rights and
`Customer's remedies against Supplier under the Order, including
`Supplier‘s warranty provisions. shall not be affemed.
`PAYMENT SCHEDULE: Customer agrees to pay the Payment
`1.
`Amounts in accordance with lhe Gonna. K fufl payment“ each Payment
`Amount and other amounts payable is not received Within 1O days o'f the
`applicable Due Date, Customer agrea to pay interest fwm the Due Date
`on the overdue amount at the rate equal to flwe lesser of 1.5% per month,
`or the maxfimum amount allowed by Saw. Taxes wilt mean an'y applimbie
`sales, use. property, value added ‘ax or any other tax or shame allowable
`to the System. Order or the Contrad (”Taxes'). Unless stated otherwise,
`Payment Amounts exclude Taxes. Any amounts payable under the Order,
`which ate not paid ihmugh this Contrad, are payale by Customer
`pursuant t_o the Order. Customers obligation to tam“ Payment Amoums
`and applicable Taxes paid through this Contract to OCC in awordanoe
`With this Wma'ct is absolute!
`unconditional, non—wnoeflable. and
`independent. and snail not be 'sum'ect to any set-ofi, recoupment. daim or
`defense for any reason. tncluding, but not limited i0, any termination of or
`dispute arising under the Order or any related agreements, or performance
`of the System. or any ,claim(s) agaih‘s‘t Supplier.
`DEFAULT: Any of the foliowing will constitute a Default under the
`2.
`Contract: (a) Customer {ails to pay when due any sums due under any
`Connect; (b) Customer fails to perform any material obligation or breaches
`any reptesentation in any Contract; (c) Cus‘omer no longer hasthe right to
`use any part of the System as a result of a materid breach of an
`agreement with Supplier or termination o! Customer's n'ght to use any part
`of'the System; and (d) Customer seam businas. or becomes insolvent
`or is subject tn bankruptcy, reorganization or insolvencyproceedings.
`REMEDIES: In the event of a Default that is notmred within 30 days
`3.
`of its ocwrrence. OCC or its Assignee may: (i) require an amount equal to
`the sum of all amounts then dUe and owing, and the unpaid remaining
`Payment Amoums specified imh'e Cantrect (discounted at the |esser of me
`rate in me Contract or the Index Rate specified in the Schedule p‘er annum
`simple imerest) to become immediately due and payable: (ii) terminate ail
`of Customer‘s rights t‘o use the System and related suppbrt and (iii) pursue
`any other rights or remedies legally available. Upon termination of the
`n‘ght to use the System, Customer shalt cease use and return the System
`as direc1ed by OCC and promptly deliver to OCC a cenifimte of non—use
`
`Payment Plan Agreement
`Executed by Customer (authorized signature):
`
`Chief Operating Officer
`«ft Corporation:
`
`4,.
`
`dm not pay under the Cbntract. then pursuant to me Order, Supplier is
`signed by an authorized signatory. Customer agrees that if Customer
`not obliged tn continue providing semioes that are a part of the System.
`If OCC or its As'slgnee mkes any action ratated to claims under the
`Contract, Customer shall pay. in addmon to the amounis due above, all
`cuss and expenses ef‘such action indudin‘g reasonable ammeys‘ fees.
`Failure or delay by OCC or its Assignee tn exerdse any right or remedy
`will not operate as a waver thereof. or o! any breach, and all remedies
`are wmuiafive and not exclusive. customer acknowiedges mat no party
`shat! license. lease, hansfer ur use any sofiware or other liwnsed
`products induded i‘n the System in mitigation of damages multing from
`Customer‘s Default, except as allowed under the Order, subject to
`appliwble law.
`ASSIGNMENT: Customer consents to the saw .or assignment of an
`or a portion of OCCTS rights m the Comma ‘or in the SW, induding
`the nghtto exera‘se remedia, to third parties (‘Assignee‘) Assignee will
`not a§ume any. of Suppfier's obligations under the Order Q’stomer
`shall pay au amounts due under the Contract, and agrees mat it shall nofi
`assert against Assignee any daim, defense, or sefo'fft'hat Customer may
`have against Supplier or OCC Customer waiV‘as all rights to make any
`claims against Assignee for any lax damage offl1e System or breach of
`any warranty, express or implied with respect to ma System. induding
`the System and service performance
`functionality, features, and
`warranties of merchantability and finess for a p‘arhcuiar purpose, if any,
`or any indirect. incidental or consequential damages or loss of business
`MISCELLANEOUS: Customer represents and wan’ants that this
`5.
`Contract has been duiy authorized and consfitute‘s a legal, valid and
`binding agreemem of the Customr. Customer agmes that it will not
`asser: thai any ‘erms in the Order- or related agreement (induding
`subsequent amendments) affect is payment obligation or OCC's rights
`under the. Contact and in the System» Any fiansfer of obligations-under
`this Cmttaa shall require OCC's and Assignee's prior wnttén consent. A
`transfer shall indude a change In majority ownership of Customer. Untfl
`an sums due under the Contact have been paid. the System remains
`subject to me Contract. Customer agrees, with resped to the Connect.
`to promptly execute and deliver any anu'llavy documents (including
`acceptance cerfifiwtes. confirmation of delivery. proof .uf authorization,
`notices of assignment. and any agreement rela‘ea to the System) and
`take further actions, such as registrafi‘ons and flungs, as OCC or
`Assignee may reasonably request. Customer agrees to provide OCC or
`Assignee copies of ns financial statements o'r other finana‘al lnfonnation
`as OCC or Assignee may reasonany request. The Contact constitutes
`me entire agreement between Customer and OCC. regarding me sutject
`matter herein, and is separate from and will supersede any inconsistent
`terms set forth in the Order. any supply agreement, Customer purchase
`orders and all prior oral and Written understandings. Capitalized terms
`no!defined herein win have the meaning set firth 1n the Schedule. tf any
`provision of the Contract is invalid, sueh imrahdit’y will not effect the
`enforceabifity of the remaining terms of me Contract. Customer shall
`provide ail notices, including bankruptcy or administrative notices to
`Operations as specified In me Schedule All p‘arfies‘ may treat executed
`faxes, smnned images or phamcoples as original doulments. The
`Comma may be executed in counterparts. which. when taken together
`will constitute a completely executed copy of the Contract This Contract
`will be g‘ovemed by the 1aws of Caeromia.
`
`‘
`
`Page 1 of1
`
`EXHIBIT A
`
`PPAWUS 190d12 updale 21MaFMi
`
`

`

`URA LE
`
`.mws 4‘ w.
`
`x
`
`W
`
`.. ..
`
`\
`
`‘
`
`Customen
`
`EBONY MEDIA oPERATIous, LLc
`
`WM"
`Payment Schedule
`(Software) No.
`86755
`
`Address:
`
`Contact:
`phone;
`EmaiINotice:
`Order.
`PPA No.;
`
`WCloud Services 'z
`
`1700 POST OAK BLVD
`
`Houston TX 77056
`Mark Waiker
`312—322-9250
`mWaflerQQbonxgom
`Egg") \\ -—
`Dated: \g'
`
`‘
`
`Signature:
`Name:
`pm!
`True:
`Contact Efiecu‘ve Date:
`
`4»
`
`.
`
`V“ ’7
`
`Total:
`
`Payment Amount:
`Due Date:
`11 @ $21,007.75
`Quart'efly from
`01-Oct-1 7 through 01-Apr-20
`11 paymenm dueas set forth ab’ove.
`‘36 month term
`Taxes: Customer agrees that OCC may add the appfimble Taxes due 0n the System Price to each Payment Amount based on the
`applicable tax rate invoiced by supplier at shipment OCC may adjust subsequent Payment Amounts to reflect any change or aOrrecfion in
`Taxes due.
`Transaction Specific Terms (any terms specified in this secfion will supersede inconsistent terms elsewhere in the Contract):
`This schedule (“Schedule") is entered into by Customer and Oracle Credit Corporation COCO“) for the acquisition of the System from the
`applimhle Supplier. This Comma: replaces Customer's payment obligation Under the Order m Supplier to the extent of the Systeni Price listed
`above and Customer agrees 1o pay me System Price (indud‘mg Renewal Services fees) on an installment basis. This Scheduie incorporates by
`reference the terms and conditions of the above-refereneed PPA to create a separate Contmct. Any reference to “Order" or 'Agreement“ in this
`Contract shall mean the above-referenoed Order, togetherwith any otheragmement governing Customers right in me System. Each mmponent
`of the System specified herein is further described in the Order. Cioud services are subscripuon lights, which may include Saas, Pass or laaS,
`that are’ paid through this Contract. The System Price is-me‘ amount set forth above forthe ?t’erns that are paid for through this Contact.
`A. SYSTEM: For the purposes 0f this Contract, the software. serviceS. and cloud serviws are accepted. 1f any portion of the System has not
`been delivered (or, for cloud services, the services period has not commenced) 45 days after the Contract Effective Date, then 00C may, with
`written notice, remove the fees far that portion from the System Price and reduce the Payment Amounts by the amount athibutable to that portion
`of the System. OCC and Customer may agree to mumally acceptabte terms a'nd' enter into a new, separate Contract for any portion of the
`System that was ternoved from this Contract; otherwise, Customer will pay the Supplier for the .remqved ponion as per the Order. Where the
`System includes doud services, until ail sums due under this Contrad are paid, Customer agrea thai Cus1°mers right to use. an cloud services
`provided under the Order, including any renewals or extensions, are subject to the terms of this Contract. Before any pan of me System is
`converted, replaced or traded in by Customer or any other party, Customer shall contact Operations to make arrangements to futfill a" its
`financial obligations under me Co‘nkact
`If the System Price includes fees for renewa$ periods of sewines after the first period of services (as such period is defined in me Order). such
`services win be 'Renewal Services" and will be ordered through this Contract. At the start of each Renewal Services period, Renewal Services
`for that period will become a pad of the System and are accepted for purposes of Customer‘s payment obligations underthe Contract. Renewa!
`Services fees (and appiicable Taxes) win be paid (o Supplier (pursuant to the Suppfier invoice) ihrough this Contact, from the Payment Amounts
`(and applicable Taxes) received in the appliwble Renewa! Sewina period, Future inc‘reasa in fees for Renewal Servim (if any) are not
`included in the System Price or Payment Amounts, and shatl be due separately to the appliwble Supplier from Customer. Each Payment
`Amount (net of fees for Renewal Services, if any) is comprised of a proportional amount of each component o‘f the System Pfi‘ce (net of iota! fees
`for Renewal Services, .if any). The term Order alsa includes orders (in whatever form) for Renewal Services included in the, System.
`B. ADMINISTRATIVE: Customer agrees that OCC may insert the appropriate administrative information to compIe‘ie me Contract. and OCC
`will provide a copy of the Contract upon request. For this Contract, the discount rate in the Remedies Section of the PPA shall be the lesser of
`the rate in the Contract or 2% (the "Index Rate“). OCC will gounterstgn this Schedule upon Customer's deIivery of a fufly executed Order, PPA,
`and any other documentation required by 00C (in form and substance acceptable to 000),. and upon such oountersignature. the Contract will be
`effective as of the Contract Effective Date. All notices or contact for Operations shall be sent to ofd-notice_yw@orade.com.
`
`Page 1 01 1
`
`EXHIBIT B
`
`PS (5W)_Us 1901-112 upéam ‘ISSEPIE
`
`

`

`Amendment No. 1
`to Pa men Schedule No. 86.755 dated AW' 18. 2°17 ("P53
`ted \i‘flfl I C'PPA," and logether with the PS, the “Contracn between
`to the Payment Plan Agreement No3
`EBONY MEDIA OPERATIONS, LLC (“Customer’L CVG GROUP LLC (Affiliate Co-o‘bligor‘), and Grade Cfedit
`Corporation (”OCC')
`This Amendment hereby amends the above—refarenoed Contract En the following respects:
`
`,
`
`:
`
`1.
`
`Pmmble aflerthe first sentence ofthe Sc ed i
`Add the following after the first sentence:
`"In consideration of OCC providing financing terms to Customer, and in consideration of the
`benefits to CVG GROUP LLC an afiliate of Custom r ("Affiliate Co—obligor'). from the acquisition ofthe
`astem, Affiliate Co-obligor has agreed to execute this Contract and become a co-obligo‘r of
`Customer‘s obiigations under the Contract to the same extent as if Affiliate Co-obligor had originally
`executed the.Cont'ract, and shall assume the same obligations of Customerunder the ContracL Each
`of the co-obligors herein is-joinfly and severally liable for the obfigations of Customer, and any and all
`references to Customer in the Contract shall mean Customer and Affiliate Co-obfigor, jointly and
`severally. The foregoing shafl not in any way diminish, decrease or discharge Customer’s
`responsibilities or duties to OCC or its assignees under the Contract.”
`All other provisions of the Contract remain unchanged and in full force and effect.
`The Effective Date of this Amendment No. 1 is \K ’ PW. \j
`CUSTOMER (authorized signature):
`ORACLE CREDIT CORPORATION
`
`AFFIUATE CO~OBLIGOR (authorized signalure):
`
`By; M,ZA ML
`
`Name:
`Title:
`
`'
`
`WI r
`" ‘
`
`PS Amendment_US
`
`EXHIBIT C
`
`

`

`ORACLE
`
`’
`
`‘
`
`.1
`
`ORDERING DOCUMENT
`
`f
`
`Ebony Media Operations, LLC
`1700 Post Oak Blvd Sle 60
`HOUSTON TX
`77056
`
`Contact
`Phone Number
`Ema: A ress
`'l dd
`
`Name
`Address
`
`New Subscription
`
`/
`Grade Amerlm, Inc.
`500 Omde Parkway
`Redwood Shara CA 94065
`
`Anu Pilbi
`
`7135137141
`aprllaa@ebony com
`
`.
`
`‘
`
`'
`
`Management Cloud Service - Instance
`879188 - Oracle Additional Categories Cloud
`Service - Category
`
`500
`
`‘
`36 mo
`I’”
`
`x
`
`63.5
`
`5,475.00
`
`63,000.00
`
`63.5
`
`1.28
`
`Subtotal
`
`603,000.00
`
`197,100.00
`
`22,995.00
`
`220,095.00
`
`.ai,.
`
`a;
`
`220,095.00
`
`i
`
`CPQ32711a-1
`
`EXHIBIT D
`
`Issued by Orade Amerim, Inc.
`
`1 1—APR-2017
`Page1 of4
`
`

`

`A. Terms ofYour Order
`1. Agreement
`Oracle Cloud Services Agreement v03191 6 for Gracie America, Inc. available at www.oraclesomloomrads
`2. Payment Terms:
`Net 30 days from Invoice date
`3. Payment Frequency:
`Annually in Advance
`
`(“W
`fl...“
`
`4. Currency:
`US Dollars
`
`5. Offer Valid through:
`
`31-MA‘fi-2017W6. Services Period
`
`The Services Pen’od {or the Serviws commences on Ihe date stated in this onder. If no date is specified. then the "Cloud Services Smrt Date“ hr each
`Service will be the date that the User login names and passr/ord are issued to you to amass the Services, and the 'Consulfinglefessional Services
`Start Date' is the date that Oracle begins performing such services,
`7. Service Specifications
`Service Specifications applicable to he Cloud Services and the Consulting/Profesional Services ordered may be accessed a‘ www.oracle.noml
`contracts.
`8. Customer Reference
`Oracle may refer to You as an Oracle customer of he ordered Services in sales presentations, marketing materials and advifia.
`B. Additional Order Terms
`1. Data Processing Agreement Exclusions
`The Grade Data Processing Agreement does not apply to the following services: Oracle Field Service ETAwoddorce Cloud Service; Oracle Marketer
`Cloud Services and Optional Services; Oracle Utilities Opower Cloud Services, Oracle Publisher Cloud Services and Optional Serviow; Oracle Mobile
`Audience Cloud Services and Opfiona! Services; Otade Search AudSenoe Cloud Services and Optional Services; Gracie Marin Search Audience Cloud
`Services and Opfiona! Services; Match Multiplier Services.
`2. Direct Relationships with Client (signing entity of the Order)
`Limited Right to Oracle Data. For the duration of the Services Period and subjectto ‘Ihe terms of the Agreement and this order. Oracle hereby grans You
`a timited, nonexclusive, nontransferable, non-sublicensable right to (1) view the manner in which the categories and data ambutes are organimd (the
`Oracle Data taxonomy) within the Audience Data Management Platform, and (2) perform analytics on Orade Data and Your Content within the Audience
`Data Management Platform. You may not Target content and advertisements using. or otherwise use or transmit. Oracle Data outside of he Audbnca
`Data Management Platform for any purpose. including without limitation for Targeting, modeling, or opu‘mimtion; You must enter into a separate
`agreement or order with Omde for any such purpose or use. You win not pmvide reseatdm reports m any Vhird parties on a paid or unpaid basis about
`the Audience Data Management Platform or other Oracle data marketplaces (including the volume and audion prim of dam).
`Oracle will use commercially reasonable efforts to make available to You the Oracle Data that You order for the limited purposes set forth herein. You are
`responsible for all use of Oracle Data under this order. Grade and its Iioensors retain all ownership and intellectuai property rights in and m the
`Services, derivative works thereof. and anything developed or delivered by or on behalf of us under this order. Orade wnnot guarantee me provision,
`accuracy, quality, integrity or reliabiiity of any Grade Data to You. THE ORACLE DATA IS PROVIDED 0N AN 'AS IS" BASIS WITHOUT WARRAN'nES
`OF ANY KIND. WHETHER EXPRESS. IMPLIED (EITHER 9N FACT OR BY OPERATVON OF LAW). 0R SMTUTORY. AS TO ANY MATI‘ER
`WHATSOEVER.
`
`3. Oracle Marketing Cloud Service Terms
`This Section is applicable to the following Oracle Marketing Claud Services (“Marketlng Cloud Services"):
`Oracle Marketer Audience Data Management Cloud Services and Opfional Services
`Oracle Publisher Audience Data Management Cloud Serviws and Opfional Services
`- Grade Mobile Audience Data Management CIoud Services and Oph‘onal Services
`Oracle Search Audience Data Management Cloud Servim and Optional Services
`CPQ-327114 — 1
`
`°
`
`-
`
`~
`
`[med by Oracle Amen'm. Inc.
`
`11—APR—2017
`Page 2
`
`of 4
`
`

`

`-
`
`Otade Man'n Search Audience Data Management Cloud Services and Optional Services
`Oracle Marketing Cloud Definitions
`'Oracle Dam" means third party data, consumer data collected by Oracle, and derivatives thereof. licensed or made available to You. by or on behalf of
`Oracle pursuant to this order. Oracle Data indudes, but is not limited to, data analyfis, Segments, Identity Persistence Memanisms and audience data,
`Oracle Data does not include Your Content. and falls wi1hin the meaning of Third Party Content for purposes of the Agreement.
`"Client” means Your client identified in this order who wishes to use, or have You use on its behalf. the Servuoes.
`'Category‘ or "Categories" means a grouping of Oracle User IDs and Grade Data, Your Content or Segments based on shared attnbutes or
`maracien'sfias.
`'Audlence Dam Management Platform" or 'ADMP" means the technoiogy and services provided to You by Oracle under this order and as further
`described in me Service Specificafions mat enable dam collection. management, sharing and anatyb'm. The Audience Data Management Platform
`enables Targeting for both web-based ('Sbndard A_DMP") and mobiJe-based ('Mobile ADMP“) marketing.
`"Identity Persistence Mechanism" means cookie identifiers, stafisu‘wl Identifiers, mobile device identifiers, bashed identifiers, tags. pixels or other
`identifiers.
`'Oracie User ID' means a unique idenfifier assigned to a Slte User, typiwlly through use of an Identity Persistence Mechanism, Pixel Tag or other
`JavaScript code, ID swap or by omer means.
`"Segment” means a non-personally identifiable classification of dam. of an individual, or of an individual's behavior.
`"Target" or “Targeting" means the display of media impressions, ads. or sne conient to a web browser or a device.
`Privacy
`a. Comglianoe with Rules. Oracle will comply with all Rules directly applicable to Oracle in is role of providing the Services to You. You will comply with
`all Rules appliwble to Your use of the Services and the coliection, use or provision to Orade of Your Content. You and Oracle agree to negotiate in good
`faith with each other to make any amendments to this Agreement as are reasonably necessary to comply with me Rules. In the event of any mange in
`the Rules or in me regulatory or self-regulatory environment in any applicable jurisdiction, Oracle may, In its discretion. maid Your use of or access to
`me Services in sum jurisdidion, withom fiabflity to You or any third party.
`As used herein, "Ruies' means an applicabfe privacy, electronic communlcafions and data protection laws. mles, regulations, and regulatory guidelina,
`as well as any applimble self-regulatory guideiines, including. without limitafion. each of the SeIf-Regulatory Principles of the