Exhibit List PartyCal. Super. - 6th Dist.March 20, 2019Electronically Filed by Superior Court of CA, County of Santa Clara, on 6/30/2020 9:50 AM Reviewed By: A. Floresca Case #19CV344918 Envelope: 4528467 19CV344918 Santa Clara - Civil A. Floresca 10 ll 12 l3 l4 15 l6 l7 l8 l9 20 21 22 23 24 25 26 27 0C2 William B. Clayton, Jr. (S.B.N. 6081 1) Laurence J. McEvoy (S.B.N. 45565) CLAYTON & McEVOY, P.C. 333 W. Santa Clara Street, Suite 618 San Jose, California 951 13-1715 Telephone: (408) 293-9100 Facsimile: (408) 293-4172 Email: Wbc@clavton-mcevoy.com Email: 1im@clavton-mcevov.com Attorney for Defendants DMJ HOME SOLUTIONS, LLC, and DAVID HERRERA IN THE SUPERIOR COURT 0F THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA ARVIND K. AGARWAL AND NEELO Case No. 19CV34491 8 AGARWAL AS TRUSTEES OF THE AGARWAL FAMILY TRUST DATED EXHIBITS TO DECLARATION OF AUGUST 2, 2001, DAVID HERRERA IN OPPOSITION TO PLAINTIFFS’ MOTION TO ENFORCE Plaintiffs, SETTLEMENT AGREEMENT V. Date: July 2, 2020 Time: 9:00 am. DMJ HOME SOLUTIONS, LLC, A Dept: 20 NEVADA LLC; DAVID HERRERA, Judge: Hon. Socrates P. Manoukian APEX PROPERTY GROUP, LLC, A NEVADA LLC, ERIC FOGELSONG, DAN NOBLE, MICHAELA ROUSSEAU Complaint Filed: March 20, 2019 AND DOES 1 through 150, inclusive, Defendants. Defendants DMJ Home Solutions, LLC, and David Herrera submit the following exhibits t0 the Declaration of David Herrera in Opposition to Plaintiffs’ Motion to Enforce Settlement Agreement: Exhibit A Order filed herein 0n July 24, 2019 Exhibit B Mutual Release and Settlement Agreement. Exhibit C Private Capital Investments Letter of Intent dated February 6, 2020. _ 1- EXHIBITS TO DECLARATION OF DAVID HERRERA IN OPPOSITION TO PLAINTIFFS’ MOTION TO ENFORCE SETTLEMENT AGREEMENT 10 ll 12 13 l4 15 l6 l7 l8 l9 20 21 22 23 24 25 26 27 ’)Q Exhibit D Exchange 0f emails between Defendafits’ counsel and Plaintiffs’ counsel dated February 4th through 7th, 2020. Exhibit E Plaintiffs’ counsel’s email to Defendants’ counsel dated February 10, 2020. Exhibit F Defendants’ counsel’s February 19, 2020, correspondence to Chicago Title Company. Exhibit G Defendants’ investor contact list [DMJ refinance subordinations] dated Jun 25, 2020. Exhibit H Private Capital Investments Letter 0f Intent dated May 20, 2020. ExhibitI Private Capital Investments Letter 0f Intend dated May 20, 2020. Respectfully Submitted, Dated: June 29, 2020 Clayton & McEvoy, P.C.WW Laurence J.' McEgoy,attWr Defendants DMJ Home Solutions, LLC, a avid Herrera _ 2- EXHIBITS TO DECLARATION OF DAVID HERRERA IN OPPOSITION TO PLAINTIFFS’ MOTION TO ENFORCE SETTLEMENT AGREEMENT EXHIBIT A 1 E L F 2 3 CI JUL 2 42019 4 13:qu e \ Agfllemygrocanza cm 5 WI@SWart DEPUTY 6 SUPERIOR COURT OF CALIFORNIA 7 COUNTY OF SANTA CLARA 8 9 ARVIND AGARWAL, et al., ‘ Case No. l9CV34491 8 10 Plaintiff, 11 VS. ORDER 12 .13 DAVID HERRERA, ct aL, 14 Defendants. 15 16 17 Defendant DMJ Home Solutions, LLC (“Defendant”) brings this Motion to Expunge Lis 18 Pendens as 'to Iis pendens recordings on six different pieces of real property recorded by Plaintiffs 19 Arvind Agarwal and Neelo Agarwal as Trustees ofthe Agarwal Family Trust dated August 2, 2001 20 (“Plaintiffs”). Defendant’s moving papers set forth the following arguments in support of their 21 Motion to Expunge: (l) Plaintiffs’ claims are for money damages arising out ofalleged breaches on 22 two separate and distinct commercial agreéments between Plaintiffs and Defendant and there is 'no 23 valid real property interest affecting the “right, title and interest to real propeflyf’ (2) rather than 24 asserting a valid real property claim, the intent of the recordings is an effort to freeze the 25 marketability of all six OfDefendant’s pending real property rehabilitation projects, including refinancin‘g‘a‘nd"C‘0T1‘s;true‘t‘i‘Ofi“lmfn§;'('3‘)‘t’lTeTaTRB‘Sfifa’c‘tib‘n“Ket'f'cmh‘i‘rt?1a‘i‘n‘tiffs"”V‘er‘ifi“ed*Compl’a'ifif " “ 26 do not assert a real property ciaim as contemplated by CCP Section 405 .4 and Plaintiffs’ have not 27 met their burden of proof in showing the existence of a real property claim; (4) Pursuant t0 BGJ 28 Associates, LLC v. Superior Court and its progeny, Plaintiff’s allegations do not support the \OOOflQUx-PUJNy-A NNNNNNHr-AHp-Ay-IHL-AHp-An-t Lh-waHOOOOflQM-PWNHO recording of a lis pendens because the subject Complaint attempts to obtain money damages and does not seek title or possession of any real property; and (5) Defendant is entitle to an award of attorney’s fees. The Motion is opposed by Plaintiffs. In their opposition papers, Plaintiffs arguez' (1) the operative First Amended Complaint contains a cause 0f action for judicial foreclosure on each property against which a lis pendens has been recorded and therefore asserts a “real property claim”; (2) Article IV of both Joint Venture Agreements between the parties includes broad language which grants Plaintiffs a security interest in all 0f Defendant’s Property Developments as security for Plaintiffs” investments; (3) Anicle IV does not limit the secured interest to only the two specified properties but to all “Property Developments” of Defendant held at the time or in the future; (4) the lis pendens are necessary to place any prospective lender or purchaser on notice that Plaintiffs claim a right to those properties superior to any right or interest acquired after the recording ofthe lis pendens; (5) Defendant’s reliance on BGJAssocz'ates, LLC is misplaced as Plaintiffs’ claims arise from the express grant of a security interest in all its Property Developments rather than a claim for constructive trust; and (6) Plaintiffs are entitled to recover reasonable attorney’s fees for successfully opposing the Motion to Expunge. In reply, Defendants argue: (1) The FAC does not state a real property claim under CCP Section 405.4 because there is no basis for Plaintiff’s “equitable moflgagc” claim as neither ofthe Joint Venture Agreements define Plaintiffs’ contribution as a “loam” and (2) the documentation attached to the FAC by Plaintiffs shows that Plaintiffs made an investment not a loan and accordingly, Plaintiffs attempts to premise an “equitable mortgage” as support for the Judicial Foreclosure cause of action must fail and the lis pendens recordings must'be expunged. The Court posted its tentative decision on July 10,? 2019 and Defendants timely notified opposing counsel and the Court of their intent to challenge the tentative which-denied the Motion to Expunge. At the hearing on July 11, 2019, Defendant’s counsel reiterated many ofthe same arguments set forth in the moving papers, but further argued that since the Joint Venture Agreements did not refer to “specific” real property as required by CCP 405.4, the general reference to “all NNN oofla Propefiy Developments” in the Joint Venture Agreement did not meet the statutory requirements for recording a valid lis pendens. Oxoooqoxmhm‘m.‘ NNNNNNr-‘HHr-Ib-AHHx-nwe-A Uw-bbJNF-‘OKOOOQmm-hWNH After a thorough review of the pleadings and papers submitted in support of and in opposition to the instant motion and following oral argument by counsel at the hearing of this matter on July 11, 2019, the Court issues the following order: Defendant’s Motion to Expunge is DENIED. A plain reading ofthe language set forth in Article IV of the Joint Venture Agreement (Exhibit A to the FAC) clearly grants Plaintiffs a' security interest in the “Property Developments” of Defendant and shall serve as security for “any and all bf the Obligations, and, for the repayment thereof, Partner 2 (Plaintiffs) may resort‘to any such collateral in such order and manner as Partner 2 may elect.” (Emphasis added). This language is broa'd and obligates Defendants to have their property developments held as security for any and all of their obligations undér the Agreement. This is a contractual obligation agreed to by the panics. Furthermore, the Com“: finds that this contractual language substantially complies with the specificity requirement of CCP 405.4 as it refers specifically to all Defendant’s “Property Developments.” The Court finds that Plaintiffs’ claim for judicial foreclosure based upon this contractual obligation does constitute a “real property claim” for purposes of recording a lis pendens on Defendant’s “property . developments.” The Court declines t0 award attorney’s fees under the circumstances. '- DATEDjxi i Mm H . \kswww PETER H. KIRWAN JUDGE OF THE SUPERIOR COURT NNN GONG SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA DOWNTOWN COURTHOUSE 191 NORTH FIRST STREET SAN Jose, CALIFORNIA 95 1 13 CIVIL DIVISION RE: Arvind Agarwal et al vs David Herrera et al Case‘Number: 19CV344918 PROOF OF SERVICE was delivered to the parties listed below the above entitled case as set forth in the sworn declaration below. If you, a party represented by you, or a witness to be called on behalf of that party need an accommodation under the American with Disabilities Ack. please contact the Court Administrator’s office at (408) 882-2700, or use the Court’s TDD line (408) 882-2690 or the r Voice/TDD California Relay Service (800) 735-2922. DECLARATION OF SERVICE BY MAIL: | declare that l served this notice by enclosing a true copy in a sealed envelope, addressed to each person whose name is shown below. and by depositing the envelope with postage fully prepaid. in the United States Mail at San Jose. CA on . CLERK OF THE COURT. by Ingrid Stewart, Deputy. cc: Douglas W DalCielo 1503 Grant Rd Suite 200 Mountain View CA 94040-3270 Brian M Affrunti 1503 Grant Road Ste 200 Mountain View CA 94040~8270 William B Clayton Jr 333W Santa Clara St Suite 950 San Jose CA 951 13 CW-9027 REV 12/08/16 PROOF OF SERVICE ; EXHIBIT B MUTUAL RELEASE AND SETTLEMENT AGREEMENT This Mutual Release and Settlement Agreement (“Agreement”) is entered into by and between ARVIND K. AGARWAL AND NEELO AGARWAL AS TRUSTEES 0F THE AGARWAL TRUST DATED AUGUST 2, 2001 (hereinafter “AGARWAL”), and DMJ HOME SOLUTIONS, LLC AND DAVID HERRERA (hereinafter “DMJ”), (hereinafter collectively the “PARTIES”). WHEREAS On March 20, 2019 AGARWAL filed an action entitled Arvind K. Agarwal and Neelo Agarwal as Trustees of the Agarwal Trust Dated August 2, 2001 v. DMJ Home Solutions, LLC, David Herrera, Apex Development Group LLC, Eric Fogelsong, Dan Noble, Michaela Rousseau and Does 1-150 et al., Santa Clara County Superior Court Case No. 19CV344918. On May 30, 2019 AGARWAL filed an amended complaint (collectively referred to as the “Action”). Said Action arose out of two Joint Venture Agreements between Agarwal and DMJ Home Solutions, LLC for the purchase renovation, development and sale of real property as attached as Exhibits A and B to the amended complaint. WHEREAS, AGARWAL has settled the Action with all other Defendants other than DMJ. WHEREAS, AGARWAL and DMJ desire to enter into a settlement and compromise of the Action between them that pertains to the Action, whether they now exist or may exist in the future. NOW, THEREFORE, and in consideration of the mutual covenants and conditions set forth below, the parties agree as follows: SJ - San Jose #4838-0783-3520 v1 TERMS OF THE SETTLEMENT 1. The Recitals are incorporated herein by reference and made a part of this Agreement. 2. Settlement Amount. DMJ shall pay AGARWAL the total sum of Nine Hundred Fifty Thousand Dollars ($950,000) in full and final resolution of the Action (“Settlement Amount”). Subject to the terms of this Agreement, the Settlement Amount is payable as follows: a. The sum of $800,000 to AGARWAL on or before forty-five days (45) from the execution of this Agreement, conditioned upon the recording of releases of Lis Pendens (Notice of Pending Action) and associated title defects for all properties of DMJ as identified below. Said check or wired funds shall be payable to the Burke, Williams and Sorensen Client Trust Account. Tax Identification No. 95-1705973. Wiring instructions will be confirmed prior to transmittal. b. The balance of the Settlement Amount, that being $1 50,000 shall be split into three (3) amounts of $50,000 plus interest at 10% per annum, individually secured against the interests of DMJ in three corresponding properties. Each amount of $50,000 will be payable upon sale, refinance or transfer of the corresponding property securing the amount plus accrued interest. The properties securing each increment of $50,000 are as follows: (i) 5401 Claremont Avenue, Oakland, CA 94618 (APN: 144273-16) (“Claremont Property”); SJ - San Jose #4838-0783-3520 vl (ii) 10410 N. Stelling Road, Cupertino, CA 95014 (APN: 326-30-094) (“Stelling Property”); and (iii) 10191 Santa Clara Avenue, Cupertino, CA 95014 (APN: 326-22-036) (“Santa Clara Property”). Each such $50,000 obligation will be secured by a deed of trust (see Section 4 below). AGARWAL agrees to look to each separate property for payment of each $50,000 installment. Interest shall accrue at the rate of ten percent (10%) per annum for each $50,000 installment from the date of recording of each respective deed of trust through the date of payment from each property. All closing and escrow costs shall be DMJ’s responsibility for each payoff transaction. Within forty eight (48) hours of notice, AGARWAL shall submit a demand for payoff in an amount of principal and accrued interest together with a duly executed Deed of Reconveyance in recordable form, acceptable to the escrow company, authorizing the recording and release of the corresponding Deed of Trust when the principal and accrued interest due AGARWAL is held by the escrow company for the benefit of AGARWAL. ln the event any $50,000 payment, plus interest, or any portion therefor, is not made upon sale, refinance or transfer of the corresponding property securing the amount plus accrued interest, DMJ remains responsible for paying said amount and Agarwal may enforce this Agreement pursuant to Section 664.6 of the Code of Civil Procedure to recover any unpaid amount. 3. Lis Pendens Releases. The payment of the portion of the Settlement Amount by DMJ in section 2(a) above, is strictly conditional upon the timely release SJ - San Jose #4838-0783-3520 vl by Plaintiff of all Lis Pendens recordings made by or on behalf of Plaintiff in this action by the recording of a Release of Lis Pendens substantially in the form attached as Exhibit A for each property affected. a. Disclosed recorded Lis Pendens. Plaintiff confirms the following recordings have been made: Original Recording 1. 2. 3. 5401 Claremont Avenue, Oakland., California (Original recording #201 9076979) 118 Telles Lane, Fremont, California (Original recording #201 9079598) 10410 N. Stelling Road, Cupertino, California (Original recording #241 68989) 26 Alpine Avenue, Los Gatos, California (Original recording #24168990) 7825 Lilac Court, Cupertino, California (Original recording #24168991) 10191 Santa Clara Av., Cupertino, California (Original recording #241 68992) Second Recording 7. 8. 9. 5401 Claremont Avenue, Oakland., California (#2019093484) 118 Telles Lane, Fremont, California (#2019093485) 10410 N. Stelling Road, Cupertino, California (#24183363) 10.26 Alpine Avenue, Los Gatos, California (#24183366) 11.7825 Lilac Court, Cupertino, California (#24183365) 12. 10191 Santa Clara Avenue, Cupertino, California (#24183364) Third Recording 13.18833 Tuggle Avenue Cupertino CA 95015 (APN 375-33-056) 14. 15435 Blackberry Hill Road Los Gatos CA 95030 (APN 532-25- 01 5) . Undisclosed Lis Pendens. The payment of the Settlement Amount is conditioned upon the release by Plaintiff of any and all Lis Pendens or title defects arising from this Action. SJ - San Jose #4838-0783-3520 vl c. No Additional Recordings. Plaintiff will take no further action to affect title to properties of DMJ or otherwise hinder or hamper DMJ’s ability to obtain insurable title from a title insurance company of DMJ’s choice to any third-party lender, purchaser or encumbrancer for value. 4. m To facilitate the timely release of all claimed liens and encumbrances arising from the recordings associated with the Action, DMJ will open an escrow with a title company of DMJ’s choice (with the restriction that the escrow officer cannot be Jason Herrera), and perform a preliminary title search for DMJ - properties in order to identify liens and encumbrances associated with the Action and Plaintiff’s claims in the Action. DMJ will notify Plaintiff through counsel of record of any additional defects to title or recordings which must be removed prior to the payment of the first installment of the Settlement Amount. a. For each title defect noted by the title company associated with the Action, or Plaintiffs claims made in the Action Plaintiff shall cause to be deposited into the custody of the escrow holder a fully executed and recordable Release of Lis Pendens in the form attached as Exhibit A or such form or forms acceptable to the title company to allow title to the particular property to be insured free of all claims of Plaintiff. All deposits of documents by or on behalf of Plaintiff shall be made with the title company and be accompanied by instructions that they are not to be recorded SJ - San Jose #4838-0783-3520 vl unless or until the amount of $800,000 is held by the title company for the benefit of Plaintiff and any other conditions of funding have been fulfilled. b. DMJ shall deposit or cause to be deposited the sum of $800,000 into the custody of the escrow holder for payment of the first installment of the Settlement Amount to Plaintiff together with: (i) A fully executed Deed of Trust in recordable form in the form attached as Exhibit B securing the amount of $50,000.00 against the Claremont Property, and (ii) A fully executed Deed of Trust in recordable form in the form attached as Exhibit B securing the amount of $50,000.00 against the Stelling Property, and (iii) A fully executed Deed of Trust in recordable form in the form attached as Exhibit B securing the amount of $50,000.00 against the Santa Clara Property. c. All deposits of documents or funds by or on behalf of DMJ shall be made with the title company and be accompanied by instructions that they are not to be paid or recorded unless or until the title company holds satisfactory releases of all Lis Pendens in recordable form or other documents as deemed necessary by the title company to clear all claimed interests by Plaintiff for the benefit of DMJ and any other conditions of funding have been fulfilled to allow the first installment to be paid to Plaintiff. - -6- SJ - San Jose #4838-0783-3520 vl d. When all conditions of closing are fulfilled the escrow holder shall proceed to record the releases identified herein and such other documents required to insure title and disburse the funds to Plaintiff for the first installment of $800,000 as provided in 2(a) above; record all evidence of security given by DMJ for the encumbered amount of $800,000 to any lender, lenders, or third party against such property or properties as directed by DMJ and thereafter record the three (3) deeds of trust identified in b (i), (ii) and (iii) above against the corresponding property. e. All closing, financing and associated cost of escrow will be borne by DMJ. After the effective date of this Agreement, no further lis pendens or liens shall be filed or recorded by AGARWAL. 5. DMJ, promptly upon the execution of this Agreement shall order a preliminary title report from the title of choice to obtain information as to the amount of secured debt recorded against each of the three properties and provide same to AGARWAL within 10 days. a. Plaintiffs recorded Deeds of Trust shall be junior to any additional debt taken on any of these properties to allow for payment of the sum set forth in paragraph 2(a) above. 6. AGARWAL shall file a dismissal with prejudice of the entire action upon receipt of the final payments referenced in Paragraph 2 above. SJ - San Jose #4838-0783-3520 vl 7. AGARWAL, for itself, successors, assigns, agents, representatives, and attorneys, héreby releases, acquits and forever discharges DMJ, Herrera their subsidiaries and affiliates, heirs, successors, assigns, representatives, attorneys, insurers, agents, and each of them, (all such persons and entities hereinafter included in the term “ DMJ Releasees”) from any and all causes of action, actions, judgments, liens, indebtedness, damages, losses, claims, liabilities and demands, of whatever kind or character, that they may have against them, or any of them, whether presently known or unknown, suspected or unsuspected, pertaining to the Action. 8. DMJ, for itself, successors, assigns, agents, representatives, and attorneys, hereby release, acquit and forever discharge AGARWAL, and their heirs, successors, assigns, representatives, attorneys, insurers, agents, and each of them, (all such persons and entities hereinafter included in the term “Plaintiff Releasees”) from any and all causes of action, actions, judgments, liens, indebtedness, damages, losses, claims, liabilities and demands, of whatever kind or character, that they may have against them, or any of them, whether presently known or unknown, suspected or unsuspected, pertaining to the Action. 9. The PARTIES hereto understand and agree that this Agreement extends to all claims of every nature and kind, known or unknown, suspected or unsuspected, arising out of or accruing in connection with any act or omission occurring prior to the execution of this instrument that pertains to the Action, and that any and all rights granted under Section 1542 of the Civil Code of California, and any analogous state or federal law or regulation are hereby expressly waived. Section 1542 of the Civil Code of California reads as follows: - .8- SJ - San Jose #4838-0783-3520 vl A GENERAL RELEASE DOES NOT EXTEND T0 CLAIMS [1] THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, [2] IF KNOWN BY HIM OR HER [3] WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY. 10. The PARTIES hereto agree never to commence, prosecute, or cause to be commenced any action or proceeding whether administrative, legal or otherwise based upon any of the matters released by this Agreement and if and to the extent such proceeding has been commended that it be immediately and completely withdrawn and dismissed with prejudice. The PARTIES hereto further agree that this Agreement shall be deemed in breach and a cause of action shall accrue thereon immediately upon the commencement of any such action or the performance of any act contrary to this paragraph. In the event that an action is brought, this Agreement may be pleaded as a defense or it may be asserted by way of cross-complaint, counterclaim, or cross-claim in any such action, or may be used, as necessary t0 establish its terms. However, nothing herein shall prevent any PARTY from enforcing its rights as otherwise provided by law upon any breach of this Agreement or instrument referenced herein by any other PARTY. 11. All PARTIES hereto shall bear their own costs and attorneys’ fees incurred as a result of the Action. 12. The PARTIES, and each of them, warrant: (i) that no other person or entity has or claims, any interest in any of the claims, demands, causes of action, or damages covered in this Agreement; (ii) that they, and each of them, have the sole right and exclusive authority to execute this Agreement; and (iii) that they have not sold, assigned, transferred, conveyed or otherwise disposed of any claim, demand, _ -9- SJ - San Jose #4838-0783-3520 vl cause of action, obligation, damage or liability covered in this Agreement. 13. AGARWAL and DMJ warrant that no part of any claim which provides a basis for any claim asserted in or for the Action has been assigned to any person or entity. 14. AGARWAL and DMJ acknowledge, represent and warrant that no person or entity, nor any agent or attorney of any person or entity, has made any promise, representation or warranty whatever, express or implied, other than those expressly contained herein, so as to tend to induce them to execute this Agreement. AGARWAL and DMJ expressly acknowledge, represent and warrant that they have not executed this Agreement in reliance on any promise, representation, warranty or fact not set forth herein. 15. Each of the PARTIES hereto acknowledge that it may hereafter discover facts different from or in addition to those it now knows or believes to be true with respect to the claims, demands, damages, debts, liabilities, accounts, actions referenced above or causes of action herein released which relate to the Action. The PARTIES fully understand that if the facts with respect to which this Agreement is executed should later be found to be different from any fact which they now believe to be true, they have expressly accepted and assumed the risk of such possible differences in facts and agree that this Agreement shall be and remain effective notwithstanding such difference, if any, and notwithstanding the alleged reason for such difference or how such difference may subsequently be labeled or categorized. 16. It is expressly understood and agreed that this Agreement may not be altered, amended, modified or otherwise changed in any respect or particular _ - 10- SJ - San Jose #4838-0783-3520 vl whatsoever, except by a writing duly executed by all parties hereto, or their authorized representatives, and the parties hereto, and each of them, acknowledge and agree that none of them will make any claim that this Agreement has been orally altered or modified in any respect whatsoever. 17. If any term, provision, covenant, condition, or portion of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the terms, provisions, covenants and conditions or portions shall remain in full force and effect and shall in no way be affected, impaired or invalidated. 18. This Agreement is executed voluntarily and without any duress or undue influence on any party, or on behalf of any party hereto, or their officers, employees, agents, affiliates or attorneys. The PARTIES hereto acknowledge that they have been represented by counsel of their own choice in the negotiations for and preparation of this Agreement, or in the alternative, they have knowingly and voluntarily waived their right to have counsel review same. 19. This Agreement shall bind and inure to the benefit of the parties hereto and their respective heirs, successors and assigns. 20. The terms of this Agreement have been negotiated by the PARTIES hereto, and no provision of this Agreement shall be construed against either party as the drafter thereof. 21. This Agreement is a result of a compromise between the PARTIES, and shall never at any time or for any purpose be considered as an admission of liability and/or responsibility on the part of any party herein released, nor shall the payment of any sum of money in consideration for the execution of this Agreement constitute - -11- SJ - San Jose #4838-0783-3520 v1 or be construed as an admission of any liability whatsoever by any party herein released, each of which continues to deny such liability and disclaim such responsibility. 22. This Agreement constitutes the entire agreement between the PARTIES hereto, and each of them, with respect to the subject matter of the Action. This Agreement is the final embodiment of the PARTIES’ agreement and all prior discussions relating to or in any way connected with the subject matters of this agreement are merged into and superseded by the terms of this Agreement. 23. The PARTIES agree to execute such additional and supplementary documents as may be usual, necessary and commercially reasonable to aid in the performance of the terms and conditions of this AGREEMENT and give it full force and effect. 24. The PARTIES agree this is a judicially enforceable settlement agreement under Section 664.6 of the Code of Civil Procedure. 25. This Agreement shall be construed in accordance with the laws of the State of California. 26. This Agreement may be executed in any number of counterparts and via facsimile, each of which shall be an original, but all of which together shall constitute one instrument. 27. The PARTIES hereby agree to a mutual non-disparagement clause. Specifically, neither party shall say or write anything negative, defamatory, or critical of the other party or its businesses, including without limitation, the posting of any critiques or comments on social media. -12- SJ - San Jose #4838-0783-3520 vl 28. The terms of the settlement shall remain CONFIDENTIAL, and the PARTIES shall not disclose the terms of the settlement to any third parties other than immediate family members, counsel, accountants, lenders, financial partners and if required by a Court of law or under power of subpoena or disclosures necessitated by the sale of any property referenced herein or any Court order. To the extent disclosure is necessitated by any breach of this Agreement or instrument referenced herein by any other PARTY disclosure is allowed but only to the extent necessary to provide for the enforcement of the Agreement. 29. The prevailing party in any legal action brought by one party against the other party‘ arising out of and/or to enforce the terms of this Agreement shall be entitled, in addition to any other rights and remedies it might have, to reimbursement of its expenses, including reasonable attorney’s fees. IN WITNESS WHEREOF, the PARTIES have executed this Mutual Release and Settlement Agreement as of the date set forth below. 41!; Dated: January é , 2020 ARVIND K. AGARWAL AND NEELO AGARWAL AS TRUSTEES OF THE AGARWAL TRUST DATED AUGUST 2, 2001 By: N . AGARWAL By: .“ N LO AGARWAL -13.. SJ - San Jose #4838-0783-3520 vl Dated: January 6th , 2020 DMJ HOME SOLUTIONS, LLC By: W DAVID HERRERA Operating Manager Dated: January 6th ,2020 W DAVID HERRERA Individual - 14- SJ - San Jose #4838-0783-3520 v1 EXHIBIT A lO ll 12 l3 l4 15 l6 l7 l8 l9 20 21 22 23 24 25 26 27 Attorney for Plaintiff IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA Case N0 Plaintiff, v. WITHDRAWAL OF NOTICE OF ACTION PENDING Defendants. [Lis Pendens] NOTICE IS HEREBY GIVEN that Plaintiff, , as , hereby withdraws the Notice 0f Action Pending (Lis Pendens) that was recorded in the above action on , as Document No.: The above Notice ofPendency ofAction (Lis Pendens) affects certain property that is the subj ect of this action and commonly known as and is more particularly described in Exhibit “A” attached hereto and made a part hereof. This Notice of Withdrawal is recorded pursuant to Code 0f Civil Procedure section 405.50. -1- WITHDRAWAL OF NOTICE OF ACTION PENDING [LIS PENDENS] Case No.: 10 ll 12 l3 l4 15 l6 17 18 l9 20 21 22 23 24 25 26 27 Dated: -2- WITHDRAWAL OF NOTICE OF ACTION PENDING [LIS PENDENS] Case No.2 lO 11 12 l3 l4 15 16 l7 l8 19 2O 21 22 23 24 25 26 27 ACKNOWLEDGMENT A notary public 0r other officer completing this certificate verifies only the identity of the individual who signed the document t0 which this certificate is attached, and not the truthfulness, accuracy, 0r validity of that document. State of California ) ) County of Santa Clara) On , before me, , a Notary Public, personally appeared who proved to me 0n the basis 0f satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacityfies), and that by his/her/their signature(s) on the instrument the person(s), 0r the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws 0f the State 0f California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Notary Public [Seal] -3- WITHDRAWAL OF NOTICE OF ACTION PENDING [LIS PENDENS] Case No.2_ lO ll 12 l3 l4 15 l6 l7 18 19 20 21 22 24 25 26 27 The action affects the title of real property situated in the County of EXHIBIT “A” DESCRIPTION State 0f California, described as follows: -4- WITHDRAWAL OF NOTICE OF ACTION PENDING [LIS PENDENS] Case No.2 EXHIBIT B RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO Name Street Address City & State Zip Title Order No. Escrow No. Assessors Parcel Number: SPACE ABOVE THIS LINE FOR RECORDER’S USE DEED OF TRUST WITH ASSIGNMENT 0F RENTS AS ADDITIONAL SECURITY This DEED OF TRUST, made between herein called TRUSTOR. . whose address is (Number and Street) (City) (State) (Zip Code) CHICAGO TITLE COMPANY, a California Corporation, herein called TRUSTEE, and , herein called BENEFICIARY, Trustor irrevocably grants, transfers and assigns to Trustee in Trust, with Power of Sale that property in County of , State of California, described as: Together with the rents, issues and profits thereof, subject, however, to the right, power and authority hereinafter given to and conferred upon Beneficiary to collect and apply such rents, issues and profits. For the Purpose of Securing (1) payment of the sum of $ with interest thereon according to the terms of a promissory note or notes of even date herewith made by Trustor, payable to order of the Beneficiary. and extensions or renewals thereof; (2) the performance of each agreement of Trustor incorporated by reference or contained herein or reciting it is so secured; (3) Payment of additional sums and interest thereon which may hereafter be loaned to Trustor, or his or her successors or assigns, when evidenced by a promissory note or notes reciting that they are secured by this Deed of Trust. To protect the security of this Deed of Trust, and with respect to the property above described, Trustorexpressly makes each and all of the agreements, and adopts and agrees to perform and be bound by each and all of the terms and provisions set forth in subdivision A of that certain Fictitious Deed of Trust referenced herein, and it is mutually agreed that all of the provisions set forth in subdivision B of that certain Fictitious Deed of Trust recorded in the book and page of Official Records in the office of the county recorder of the county where said property is located, noted below opposite the name of such county, namely: COUNTY BOOK PAGE COUNTY BOOK PAGE COUNTY BOOK PAGE COUNTY BOOK PAGE Alameda 1288 556 Kings 858 713 Placer 1028 379 Sierra 3B 187 Alpine 3 130-31 Lake 437 110 Plumes 166 1307 Slsklyou 506 762 Amador 1 33 438 Lassen 192 367 Riverside 3778 347 Solano 1 287 621 Butte 1330 51 3 Los Angeles T-3878 874 Sacramento 71 -10-26 615 Sonoma 2067 427 Calveras 185 33B Madera 911 1 36 San Benito 300 405 Stanislaus 1970 56 Colusa 323 391 Marin 1849 122 San Bernardino 6213 768 Sutter 655 585 Contra Costa 4684 1 Mariposa 90 453 San Francisco A-804 596 Tehama 457 183 Del Norte 101 549 Mendoclno 667 99 San Joaquln 2855 283 Trinity 108 595 El Dorado 704 635 Merced 1660 753 San Luis Obispo 1311 137 Tulare 2530 108 Fresno 5052 623 Modoc 1 91 93 San Mateo 4778 115 Tuolumne 177 160 Glenn 469 76 Mono 69 302 Santa Barbara 2065 881 Ventura 2607 237 Humboldt 801 83 Monterey 351 239 Santa Clara 6626 664 Yolo 769 16 Imperial 1189 101 Napa 704 742 Santa Cruz 1638 601 Yuba 398 693 lnyo 1 65 672 Nevada 363 94 Shasta 800 633 Kern 3756 7182 Orange 71 82 18 San Diego Series 5 Book 1964, Page 149774 Pace 1 shall inure to and bind the_parties hereto, with respect to the property above described. Said agreements _terms and provisions contained in said subdivisions A and B,.(identlcal in all counties) are preprinted on the fol owing pages hereof and are by thg Within reference thereto, Incor oratedIhereIn anq made a part of thls Deed qf Trust for all purposes as fully as if set forth at length herein, and BenefiCIary may charge for a statemen regarding the obligation secured hereby, provuded the charge thereof does not exceed the maximum allowed by laws The undersigned Trustor. requests that a copy of any notice of default and any notice of sale hereunder be mailed to him or her at his or her address hereinbefore set forth. Dated Signature of Trustor A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA COUNTY OF On before me, (here insert name and title of the officer) , notary public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted. executed the instrument. | certify under PENALTY 0F PERJURY under the laws of the state of California that the foregoing paragraph is true and correct. W'TNESS my hand and °ffi°ia' seal (This area for official notarial seal) Signature Page 2 DO NOT RECORD The following is a copy of Subdivisions A and B of the fictitious Deed of Trust recorded in each County in California as stated in the foregolng Deed of Trust and incorporated by reference in said Deed of Trust as being a part thereof as if set forth at length therein. A. To protect the security of this Deed of Trust, Trustor agrees: (1) To keep said properly in good condltion and repair; not to remove or demolish any building thereon; to complete or restore promptly and in good and workmanlike manner any building which may be constructed. damaged or destroyed thereon and to pay when due all claims for labor performed and materials furnished therefor; to comply with all laws affecting said property or requiring any alterations or improvements to be made thereon: nol to commit or permit waste thereof; not to commit, suffer, or permit any act upon said propetty in violation of law; to cultivate, irrigate, fertilize. fumigate, prune and do all other acls which from lhe character or use of said property may be reasonany necessary. the specific enumerations herein not excluding the general. (2) To provide. maintain and deliver to Beneficlary fire insurance satisfactory to and with loss payable to Beneficiary. The amount collected under any fire or other insurance policy may be applied by Beneficiary upon any indebtedness secured hereby and in such order as Beneficiary may determine. or at option of Beneficiary the entlre amount so collected or any part thereof may be released to Tmstor. Such application or release shall notcure or waive any default or notice of defaull hereunder or invalidate any act done pursuant lo such notice. (3) To appear in and defend any action or proceedlng purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee; and to pay all costs and expenses, including cost of evidence of title and attorney's fees in a reasonable sum, in any action or proceeding in which Beneficiary or Trustee may appear, and in any suit brought by Beneficiary to foreclose this Deed. (4) To pay: at least ten days before delinquency all taxes and assessments affecting sald property, including assessments on appurtenant water stock; when due, all encumbrances, charges and liens, with interest, on said property or any part thereof, which appear to be prior orsuperior hereto; all costs, fees and expenses of this Trust. Should Trustor fail to make any payment or to do any act as herein provided, then Beneficiary or Trustee, but without obligation so to do and without notice to or demand upon Trustor and without releasing Trustor from any obligation hereof, may, make or do the same in such manner and to such extent as either may deem necessary to protect the security hereof, Beneficiary or Trustee being authorized to enter upon said property for such purposes; appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee; pay, purchase, contest or compromise any encumbrance, charge, or lien which in the judgement of either appears to be prior or superior hereto; and, in exercising any such powers, pay necessary expenses. employ counsel and pay his or her reasonable fees. (5) To pay immediately and without demand all sums so expanded by Beneficlary or Trustee, with interest from date 0f expenditure at the amount allowed by law in effect at the date hereof, and to pay for any statement provided for by law in effect at the date hereof regarding the obligation secured hereby, any amount demanded by the Beneficiary not to exceed the maximum allowed by law at the time when said statement is demanded. B. It is mutually agreed: (1) That any award of damages in connection with any condemnation for public use of or injury to said property or any part thereof is hereby assigned and shall be paid to Beneficiary who may apply or release such moneys received by him or her In the same manner and with the same effect as above provided for regardlng disposition of proceeds of fire or other insurance. (2) That by accepting payment of any sum secured hereby after its due date, Beneficiary does not waive his or her right either to require prompt payment when due of all other sums so secured or to declare default for failure so to pay. (3) That at any time or from time to time, without liability therefor and without notice, upon written request of Beneficiary and presentation of this Deed and said note for endorsement, and without affecting the personal liability of any person for payment of the indebtedness secured hereby, Trustee may: reconvey any part of said property; consent to the making of any map or plat thereof; join in granting any easement thereon; orjoin in any extension agreement or any agreement subordinating the lien or charge hereof. (4) That upon written request of Beneficiary stating that all sums secured hereby have been paid, and upon surrender of this Deed and said note to Trustee for cancellation and retention or other disposition as Tmstee in its sole discretion may choose and upon payment of its fees, Trustee shall reconvey, without warranty, the property then held hereunder. The recitals in such reconveyanca of any matters or facts shall be conclusive proof of the truthfulness thereof. The Grantee in such reconveyance may be described as "the person or persons legally entitled thereto." (5) That as additional security, Trustor hereby gives to and confers upon Beneficiary the right, power and authority, dun'ng the continuance of these Trusts, to collect the rents, issues and profits of said property, reserving unto Trustor the right, prior to any default by Trustor in payment of any indebtedness secured hereby or in performance of any agreement hereunder, to collect and retain such rents, issues and profits as they become due and payable. Upon any such default, Beneficiary may at any time without notice, elther in person, by agent, or by a receiver to be appointed by a court, and without regard to the adequacy of any security for the indebtedness hereby secured, enter upon and take possession of said property or any part thereof, in his or her own name sue for orothenNise collect such rents. issues, and profits, including those past due and unpaid. and apply the same, less costs and expenses of operation and collection, including reasonable attorney's fees, upon any Indebtedness secured hereby, and in such order as Beneficiary may determine. The entering upon and taking possession of said property , the collection of such rents, issues and profits and the application thereof as aforesaid, shall not cure or waive any default or notice of default hereunder or invalldate any act done pursuant to such notice. (6) That upon default by Trustor in payment of any Indebtedness secured hereby or in performance of any agreement hereunder, Beneficiary may declare all sums secured hereby immediately due and payable by delivery to Trustee of written declaration of default and demand forsale and of written notice of default and of election to cause to be sold said property, which notice Trustee shall Cause to be filed for record. Beneficiary also shall depositwith Trustee this Deed, said note and all documents evidencing expenditures secured hereby. After the lapse of such time as may then be required by law following the recordation of said notice of default, and notice of sale having been given as then required by law, Trustee, without demand on Trustor. shall sell said property at the time and place fixed by it in said notice of sale, either as a whole or in separate parcels, and in such order as it may determine, at public auction to the highest bidder for cash in lawful money of the United States, payable at time of sale. Trustee may postpone sale of all or any portion of said property by public announcement at such time and place of sale, and from time to time thereafter may postpone such sale by public announcement at the time fixed by the preceding postponement. Trustee shall deliver to such purchaser its deed conveying the property so sold, but without any covenant or warranty, express or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including Trustor, Trustee, or Beneficiary as hereinafter defined. may purchase at such sale. After deducting all costs, fees and expenses of Trustee and of this Trust. including cost of evidence of title in connection with sale, Trustee shall apply the proceeds of sale to payment of: all sums expended under the terms hereof, not then repaid, with accrued interest at the amount allowed by law in effect at the date hereof; all other sums then secured hereby; and the remainder, if any, to the person or persons legally entitled thereto. (7) Beneficiary, or any successor in ownership of any indebtedness secured hereby, may from time to time, by instrument in writing, substitute a successor or successors to any Trustee named herein or acting hereunder. which instrument, executed by the Beneficiary and duly acknowledged and recorded in the office of the recorder of the county or counties where said property is situated, shall be conclusive proof of proper substitution of such successorTrustee or Trustees, who shall, without conveyance from the Trustee predecessor. succeed to all its title, estate, rights, powers and duties. Said instrument must contain the name of the original Trustor, Trustee and Beneficiary hereunder, the book and page where this Deed is recorded and the name and address of the new Trustee. (8) That this Deed applies to, inures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees, administrators, executors, successors. and assigns. The term Beneficiary shall mean the owner and holder, including pledgees of the note secured hereby, whether or not named as Beneficiary herein. In this Deed. whenever the context so requires, the masculine gender includes the feminine andlor the neuter, and the singular number includes the plural. (9) The Trustee accepts this Trust when this Deed, duty executed and acknowledged, is made a public record as provided by law. Trustee is not obligated to notify any party hereto of pending sale under any other Deed of Trust or of any action or proceeding in which Trustor, Beneficiary or Trustee shall be a party unless brought by Trustee. Page 3 DO NOTRECORD REQUEST FOR FULL RECONVEYANCE TO CHICAGO TITLE COMPANY The undersigned is the legal owner and holder of the note or notes, and of all other indebtedness secured by the foregoing Deed of Trust. Said note or notes, together with all other indebtedness secured by said Deed of Trust have been fully paid and satisfied; and you are hereby requested and directed, on payment to you of any sums owing to you under the terms of said Deed of Trust, to cancel said note or notes above mentioned, and all other evidence of indebtedness secured by said Deed of Trust delivered to you herewith, together with the said Deed of Trust. and to reconvey, without warranty, to the parties designated by the terms of said Deed of Trust, all the estate now held by you under the same. Dated Please mail Deed of Trust, Note and Reconveyance to Do not lose or destroy this Deed of Trust OR THE NOTE which it secures. Both must be delivered to the Trustee for cancellation before reconveyance will be made. Chicago Title ® Page 4 EXHIBIT C INVESTMENTS February 6, 2020 DM] Home Home Solutions, LLC Attn: David Herrera 2059 Camden Ave., Ste. 154A San Jose, CA 95124 Re: 10191 Santa Clara Avenue, Cupertino David, Thank you for your loan submission. Based on my review 0f the information I have been provided thus far, I am pleased to provide you this preliminary Letter 0f Intent to provide financing collateralized by the referenced property. We propose a refinance loan in the amount of $2,380,000, for the purpose of retiring existing debt and completing permitted construction. The loan will include an interest reserve for the term of the loan. Specific loan terms and conditions will be further illustrated and detailed in subsequent preliminary loan disclosures. You may give this letter to interested parties to show evidence of our ongoing underwriting and our willingness to provide your requested financing. Satisfactory review of current Preliminary Title Report and assurance from the Title Company that our loan can be insured as requested, and confirmation that all property taxes and/or assessments are paid current at the time of our loan recording 2) Satisfactory review of approved building permit and construction plans 3) Satisfactory review of General Contractor’s license detail, construction contract, budget, liability policy, and draw schedule 4) Verification ofsufficient property course of construction insurance policy naming PCI and/or assigns as beneficial loss payee S] Completion of all applicable business purpose declarations confirming the requested loan is not considered a consumer loan. Proposed Terms: If you agree to these terms and conditions please sign below and return to begin the loan process: DM] Home Solutions, LLC Date By: David Herrera Upon satisfaction and completionof due diligence outlined herein, I anticipate being in a position to close your loan within 7-10 business days. Please call me with any questions Sincerely, Damon Bowers, Principal Private Capital Investments This Iettershould not be construed as afinal commitment to lend. Private Capital Investments (PEI) reserves the right t0 approve 0r declineyour loan uponfurther due diligence and shall be indemnified ofany penalties argrievances due to non-performance. PCI is issuing this letter to show our intent and desire to provideyoufinancing, contingent upon verification ofyaur capacity as a borrower and satisfaction afour underwriting guidelines. Upon said verification and satisfaction, we will commit tafimdingyourloan request, REAL ESTATE FINANCING 0 SALES * TRUST DEEDiNVESTMENTS 3201 Danville Boulevard, #170, Alamo. California 94507 o Ph. 925.837.1314 - Fax 925.855.1212 www.privateoap.net EXHIBIT D William Clayton From: William Clayton Sent: Friday, February 07, 2020 9:50 AM To: Affrunti, Brian M. Cc: Dal Cielo, Douglas W. Subject: RE: Agarwal v. DMJ-payment process Attachments: TDDTSL-202024383240.pdf My client is in the process of coordinating funds to make payment to your client under the Settlement Agreement. We need to have the Release of Lis Pendens documents executed and delivered to the title company. As the Preliminary Title Reports | sent below show on Santa Clara , Claremont, and Stelling properties indicate escrow is being handled by: Chicago Title Company I90Hafiz Ava, #100 0311111116, CA 94526 tel: 925-288-8378 fax: 925-820-2698 Escrow Officer: Ruth Pike: email - ruth.walker@ctt.com Dawn Frederiksen: email- Dawn.Frederiksen@ctt.com The funds to pay your client are coming from a refinance involving all of my clients properties. However one property in particular (Santa Clara) needs to go first due to a pending foreCIosure sale. The notice of sale document was referenced on the title report | sent and reachable be using the link. To make it easierl have attached the referenced document. The sale date is set for 2/21/20. This will require your instruction to the title company with the Release of Lis Pendens to allow that to occur. My client would like to allocate 100k of the 800k of the first payment from that refinance to be paid to your client to make this happen next week. As for the other deposits by you of the Lis Pendens releases, the amount of your client's demand would be reduced to 700k. The remaining 150k would be handled as provided in the Agreement. These are very complicated transactions involving 7 properties and the conditional deposit of the Lis Pendens releases from your office are needed as soon as possible for financing completion. Ideally by Monday the 10‘“. For the purpose of reference l have been advised to use the following escrow numbers for the individual properties: 5401 Claremont FCLA-38320001 36 101 91 Santa Clara Ave FCLA-3832000’1 57/FWPS-T0200001 39 1041 O N Stelling FCLA-38320001 59/FWPS-T0200001 4O 7825 Lilac Court FCLA-3832000’l 61/FWPS-T0200001 41 118 Telles Lane FCLA-38320001 62 15435 Blackberry Hill FCLA-3932000163/FWPS-T020000142 18833 Tuggle Ave FCLA-38320001 64/FWPS-T0200001 33 Please call if there is a need for further clarification. William B. Clayton, Jr. Clayton & McEvoy P.C. 333 W. Santa Clara Street #618 San Jose, California 951 13 (408) 293-91 00 eth 120 (408) 293 4172 Facsimile wbc@clayton-mcevoy.com www.clayton-mcevoycom CONFIDENTIALITY NOTICE: This email (including any attachments) is a confidential and privileged electronic communication protected from unauthorized use and disclosure by the Electronic Communications Privacy Act, 18 USC §2510, and may constitute information protected by the Lawyer- Client Privilege and the Attorney's Work Product Protection Doctrine codified in California Evidence Code §§950-962, California Code of Civil Procedure §2018, and as promulgated by the United States Supreme Court in Standard 503 pursuant to the Federal Rules of Evidence. No one other than the intended recipient may use or disseminate the contents of this emaiI or any attachments. If you are not the intended recipient, please notify the sender by return email and delete this email and any attachments. From: William Clayton Sent: Tuesday, February O4, 2020 1:57 PM To: Affrunti, Brian M. Cc: Dal Cielo, Douglas W. Subject: RE: Agarwal v. DMJ Brian: See Attached. William B. Clayton. Jr. Clayton & McEvoy P.C. 333 W. Santa Clara Street #618 San Jose, California 95113 (408) 293-91 00 eth 120 (408) 293 4172 Facsimile wbc@clayton-mcevoy.com www.clayton-mcevoycom CONFIDENTIALITY NOTICE: This email (including any attachments) is a confidential and privileged electronic communication protected from unauthorized use and disclosure by the Electronic Communications Privacy Act, 18 USC §2510, and may constitute information protected by the Lawyer- Client Privilege and the Attorney’s Work Product Protection Doctrine codified in California Evidence Code §§950-962, California Code of Civil Procedure §2018, and as promulgated by the United States Supreme Court in Standard 503 pursuant to the Federal Rules of Evidence. No one other than the intended recipient may use or disseminate the contents of this email or any attachments. If you are not the intended recipient, please notify the sender by return email and delete this email and any attachments. From: Affrunti, Brian M. Sent: Tuesday, February O4, 2020 11:24 AM To: William Clayton Cc: Dal Cielo, Douglas W. Subject: RE: Agarwal v. DMJ Bill: Your dient is required to provide the actual preliminary title reports. Please forward those to us today. Thank you. Brian M. Affrunti l Partner Burke, Williams & Sorensen, LLP 60 South Market Street. Suite 1000 I San Jose, CA 951 13 d m 408.606.6316 i tw 408.606.6300 | fw 408.606.6333 baffruntl<613bwssiaw.com I bwslaw.com 3 ward EXHIBIT E William Clayton From: Affrunti, Brian M. Sent: Monday, February 10, 2020 11:56 AM To: William Clayton Cc: Dal Cielo, Douglas W. Subject: RE: Agarwal v. DMJ-payment process BiH: Pursuant to the settlement agreement, all Lis Pendens previously recorded were to be released, through escrow, upon receipt of $800,000 to be paid to Agarwal. Your email from Friday requests that Agarwal agree to release a single Lis Pendens on the Santa Clara Avenue property immediately because the Santa Clara Avenue property is scheduled for a foreclosure sale on February 21, 2020. This request is troublesome for several reasons, most notably that the full $800,000 is required to be paid by February 20, 2020, and therefore before any noticed foreclosure sale. Notwithstanding, Agarwal will agree to immediately release the Lis Pendens on the Santa Clara Avenue property on the following conditions: 1. You will draft the revised escrow instructions and amendment to the settlement agreement in order to reduce Agarwal's continued legal fees; 2. Your client will pay $150,000, through escrow, from the refinance ofthe Santa Clara Avenue property no later than February 12, 2020. The escrow instructions shall state that the release of lis pendens will be recorded only upon payment of $150,000 to Agarwal. Agarwal will still receive $700,000 by February 20, 2020, but will only record two $50k deeds of trusts, on S Stelling and Claremont, respectively; 3. The amended settlement agreement shaH also provide in the event any payment (either the $150,000 payment by 2/12/20 or $700,000 payment by 2/20/20) is not made in a timely manner by DMJ and/or Herrera, Agarwa! will be given an additional $50k deed of trust on a property of Agarwal’s choice. If this is acceptable, please prepare the amended agreement and escrow instructions for our review. Thank you. Brian M. Affrunti 1 Partner Burkef Williams & Sorensen, LLF’ 60 South Market Street, Suite 1000 i San Jose, CA 95113 d - 4086066316 I t» 408.606.6300 i fm 408.606.6333 baffmntiéfibwslawcom f bwgiaw‘czom | vcard The information contained in this email message is intended oniy for the CONFEDENTIAL use of the designated addressee named above. The information transmitted is subject to the attorney-client privilege and/or represents confidentia! attorney work product Recipients should not file copies of éhis email with publicly accessible records. If you are not the designated addressee named above or the authorized agent responsible for delivering it to the designated addressee, you received this document through inadvefient error and any funher review, dissemination, distribution or copying of this communication by you 0r anyone else is strictly prohibited. IF YOU RECEIVED THIS COMMUNICATION EN ERROR. PLEASE NOTIFY US IMMEDIATELY BY TELEPHONING THE SENDER NAMED ABOVE AT 8003334297. '1"hank you. From: William Clayton [maiIto:wbc@c|ayton-mcevoy.com] Sent: Friday, February 7, 2020 9:50 AM To: Affrunti, Brian M. EXHIBIT F ~ CLAYTON--& McEVOY ' A Profeésional Corporation 333 Wes't Santa Clara Street, Suite 618 San Jose, California 95113- 1721 www clayton-mcev0y.com *wiuiam B,,CI.aytoh‘,Jr. ‘ 1- - ' ' ' : : ' Telephone:(4os)293L9loo ~‘Wbc@.clayt0n-mce\70y.com . ' . ‘ j . I ‘ Facsimile: (408) 293-4172- February 1'9_, 2020 ‘ . VIA FEDERAL EXPRESS ‘ Ruth Pike I Dawh Frede'riksen _ Chicago Title Company 190 Hartz Avenue, #100 Danville, CA 94526 ‘ 'R_e: ‘. Accommodation Recording Instructions Trustoxf: DMJ Home Solutions, LLC; a Nevada Limited Liability Company Beneficiary: Arvind K. Agarwal a'n'd Neelo Agarwal as Trustees of the Agarwal Trust dated August 2, 2001 ' - Dear Escrow Officers: In accordance with Paragraph 4b (i)(ii), and (iii), of the .Mutua‘l- Release and Settlement Agreement between ' Trustor and Beneficiaries previously. provided to Chicago Title I deliver fully executed original, documents _ enumerated below to you for recording m the Office of the Recorder for Santa Cla‘ra and Alameda Counties. - These recordings are being done as 'an accommodation only. These documents will be recorded only a_fier' the completion. t_o the pending loan/refina'nce transactions of each listed property and recording of correspOnding_ Release of Lis Peridens documents. 1) Deed ofTrust With Assignment of Rents as. AdditiOnal Security. Trustor: . . DMJ Home Solutions, LLC, a Nevada Limited Liability. Company. Beneficiary; A_rvind K Agarwal and Neelo Agarwal as Trustees ofthe Agarwal Trust A I ‘ I ' dated August 2, 2001 . Amount: $50,000 t Property Address: 5401 Claremont AVenue, Oakland, California 2) Deed of Trust with Assignment of Rents as Additional Security. Trustor: I I . DMJ Home Solutions, LLC, a Nevada Limited Liability Company. ' Beneficiary: ' Arvind K. Agarwal and Neelo Agarwal as Trustees ofthe Agarwal Trust . . ‘ dated August 2, 2001 ' Amount: $50,_000 ' Property AddreSsz' 10191 Santa Clara Avenue, Cupertino, California 3) Deed of Trust with Assignment of Rents a_s Additional Security Trustor: DMJ Home Solutions, LLC, a Nevada Limited Liability Company. Beneficiary: Arvind K. Agarwal and Ncelo Agarwal as Trustees ofthe Agarwal Trust . z ' dated August 2, 2001 Amount: ' $50,000 ' Property Address: 10410 N. Stelling Road, Cupertino, California Ruth Pike Dawn Frederiksen February l9, 2020 ‘ Page 2 ' You are not to issue any title insurance in regard to these dOcuments or the land described therein. The ' tundersi'gned understands and hereby agrees that Chicago Title Insuran'ce Company has made' no representation .and does not assume any liability or responsibility of any kind whatsoever as to the Validity or the effect of the r subject documents or any provisions cOntain‘cd- th'er'ein. a -- « - I You are_ to make no demand'm connection.herewith and you are relieved of any liability or responSIbility as to _ the condition of the titl‘e to the property therein described and a‘s to the validity, sufficiency and effect of such. g _ _ , documents. It 1s understood that the folloWing recitals wnll be affixed to the documents prior to reco'rding: “This instrument is delivered to the Recorder Office as _an accommodation, by Chicago Title Insurance Company, for physical convenience only It has not been eXamined as to its validity ‘ execution or its effect on title, if any.”- '- . . ~ I We understand there is no charge for this ser‘vice other than recording fees, documentary transfer tax (if' ‘ applicable) a'nd any other charges incurred by yOur co'mpa-ny to accomplish the recording and return of these- three (3) doCuments. These accommodation recOrdings are intended to conform to the escrow instructions offered by Br-ian M. Affrunti dated February 12, 2020 on behalf of the Benefimanes and more particularly the paragraphs statingz. .“Furthe‘r, immediately upon recording the withdrawals of Lis Pendens, please record the three ' Deeds of Trust the Assignment of Rents, in the amount of $50,000, respectively, on 5401 .' Claremont Avenue, Oakland, CA, 10141 N. Stelling Road, Cupertino, CA and 10191 Santa Clara 'Avenue, Cupertino, CA.” ' h “All escrow a‘nd recording fees shall b_e borne.by DM’J Home SolutiOns, LLC. ” I ‘ Pleasepall with any guestign of nged for clarification. Very truly yours; 'WBC/ac Enclosures EXHIBIT G Investor Contact Info | DMJ Refinance Subordinations | June 25, 2020 10191 Santa Clara Ave Cupertino CA 10191 Santa Clara Ave Cupertino CA 10191 Santa Clara Ave Cupertino CA 10191 Santa Clara Ave Cupertino CA 10191 Santa Clara Ave Cupertino CA 10191 Santa Clara Ave Cupertino CA 10191 Santa Clara Ave Cupertino CA 10191 Santa Clara Ave Cupertino CA 10191 Santa Clara Ave Cupertino CA 10191 Santa Clara Ave Cupertino CA 10191 Santa Clara Ave Cupertino CA 10191 Santa Clara Ave Cupertino CA 10410 N S(elling Rd Cupertinu CA 10410 N Stelling Rd Cupertino CA 10410 N Stelling Rd Cupertino CA 10410 N Stelling Rd Cupertino CA 10410 N Stelling Rd Cupertino CA 10410 N Stelling Rd Cupenino CA 10410 N Stelling Rd Cupertino CA 10410 N Stelling Rd Cupertino CA 118 Telles Lane, Fremont, CA 94539 118 Telles Lane, Fremont, CA 94539 118 Telles Lane, Fremont, CA 94539 118 Telles Lane, Fremont, CA 94539 118 Telles Lane, Fremont, CA 94539 118 Telles Lane, Fremont, CA 94539 118 Telles Lane, Fremont, CA 94539 15435 Blackberry Hill Rd Los Gatos CA 15435 Blackberry Hill Rd Los Gatos CA 15435 Blackberry Hill Rd Los Gatos CA 15435 Blackberry Hill Rd Los Gatos CA 5401 Claremont Ave Oakland CA 5401 Claremunt Ave Oakland CA 5401 Claremont Ave Oakland CA 7825 Lilac Ct, Cupertino, CA 95014 7825 Lilac Ct, Cupertino, CA 95014 7825 Lilac 0, Cupertino, CA 95014 7825 Lilac Ct, Cupertino, CA 95014 7825 Lilac Ct, Cupertino, CA 95014 7825 Lilac Ct, Cupertino, CA 95014 7825 Lilac Ct, Cupertino, CA 95014 7825 Lilac Ct, Cupertino, CA 95014 7825 Lilac Ct, Cupertino, CA 95014 6/27/2020 1:44:24 $100,000 $200,000 $92,000 41,264 $100,000 $125,000 $100,000 $70,000 483 $120,000 $87,920 $100,000 $220,000 $29,000 $200,000 $100,000 $50,000 $85,000 $85,000 Dorffler Morin Catudal Clarke Dominguez Clarke Ganapathy Vogel Laurie Vogel Kavuri Nandakumar Nandakumar Shanmugam Peyron erry Bergh Ernest Gargas Hundagneu Kumar Ganapathy Larry Welty Lisa Trevaskis Perice Sibley Tammy Barstow Tammy Barstow Donald Catudal Emilia Herrera-Zaman Humm Lanny & Ed James Steve Wyllle Weston Cook Paiva Paiva John Paiva Terry Bergh Jinsong Hu Ronald Mackey Michael Vanni Jinsong Hu Kumar Ganapathy Lisa Trevaskls Manohar (Manu) Raghunath Michael Vogel and Helena Mak Ratna Kavuri Santha Nandakumar and Nandakumar Michael Vanni Vindy S Chan Individual Individual Individual Individual Individual Individual Individual Individual Individual Individual Individual Individual Individual Individual Charity Rehabbers, LLC Charity Rehabbers, LLC Charity Rehabbers, LLC Individual Individual Individual Individual Individual Individual Individual Individual Individual Vin Progeny Solutions LLC DMJ Investors Reconveylng EXHIBIT H PRIVATEACAPITAL INVESTMENTS May 20, 2020 DM] Home Solutions, LLC Attn: David Herrera 2059 Camden Ave., Ste. 154 San Jose, CA 95124 Re: 1 18 Telles Lane, Fremont, CA 94-539 David, Thank you for your loan submission. Based on my review 0f the information I have been provided thus far, I am pleased to provide you this Letter of Intent t0 provide financing collateralized by the referenced property. We propose a refinance loan in the amount 0f $2,083,250, for the purpose of retiring existing debt and completing permitted construction. The Proposed loan terms are as follows: I Loan Amount: $2,085,000 (12-month Loan Term) I Interest Rate: 9.500% I Loan Origination Fee: 1.5% I Interest Reserve: $49,518.75 (3 months) ' Construction Reserve: $176,528.00 Specific loan terms and conditions will be further illustrated and detailed in subsequent preliminary loanrdisclosures. You may give this letter t0 interested parties to show evidence of our ongoing underwriting and our willingness to provide your requested financing. Due Diligence/Conditions 0f approval (more information mav be required during the loan nrocess): 1) Satisfactory review of current Preliminary Title Report and assurance from the Title Company that our loan can be insured as requested, and confirmation that all property taxes and/or assessments are paid current at the time of our loan recording 2) Satisfactory review of approved building permit and construction plans 3) Satisfactory review of General Contractor's license detail, construction contract, budget, liability policy, and draw schedule 4) Verification of sufficient property course of construction insurance policy naming PCI and/or assigns as beneficial loss payee ' 5] Completion of all applicable business purpose declarations confirming the requested loan is not considered a consumer loan. ' Ifyou agree to these terms and conditions, please sign below, and return to begin the loan process: QW 05/21/2020 DM] Home Sblutions, LLC Date By: David Herrera Upon satisfaction and completion of due diligence outlined herein, [anticipate being in a position to close your loan within 7~10 business days. Please call me with any questions Sincerely, Damon Bowers, Principal Private Capital Investments This letter should not be construed as afinal commitment to lend. Private Capital Investments {PCI} resewes the right t0 approve or declineyour loan upon further due diligence and shall be indemnified ofany penalties orgrievances due t0 non-performance. PC] 1’s issuing this letter to show our intent and desire to provideyoufinancing, contingent upon verification ofyour capacity as a borrower and satisfaction afour underwriting guidelines. Upon said verification and satisfaction, we will commit refunding yourloan request. REAL ESTATE FINANCING 0 SALES ' TRUST DEEDINVESTMENTS 8201 DanviHe Boulevard, #170. Aiamo, California 94507 t‘ le 925,837.1314 0 Fax 926.855.1212 www.privateoap.net EXHIBIT I PRIVATE , INVEST ENTS May 20, 2020 DMI Home Solutions, LLC Arm: David Herrera 2059 Camden Ave., Ste, 154 ' San Jose, CA 95124 Re: 7825 Lilac Court, Cupertino, Ca 95014 David, Thank you for your loan submission, Based on my review of the information I have been provided thus far, I am pleased to provide you this Letter 0f Intent to provide financing collateralized by the referenced property. We propose a refinance loan in the amount of$2,600,000, for the purpose of retiring existing debt and completing permitted construction. The Proposed loan terms are as follows: - Loan Amount: $2,600,000,00 - Interest Rate: 9.500% - Loan Origination Fee: 1.5% - Interest Reserve: $61,749.99 (3 months) I Construction Reserve: $89,852.00 Specific loan terms and conditions will be further illustrated and detailed in subsequent preliminary loan disclosures. You may give this letter to interested parties to show evidence of our ongoing underwriting and our willingness to provide your requested financing. Due Diligence/Conditions of annroval {more information mav be required during the loan process]: 1) Satisfactory review of current Preliminary Title Report and assurance from the Title Company that our loan can be insured as requested, and confirmation that all property taxes and/or assessments are paid current at the time of our loan recording ‘ 2) Satisfactory review of approved building permit and construction plans 3] Satisfactory review of General Contractor's license detail, construction contract, budget, liability policy, and draw schedule 4) Verification of sufficient property course of construction insurance policy naming PCI and/or assigns as beneficial loss payee 5] Completion of all applicable business purpose declarations confirming the requested loan is not considered a consumer loan. Ifyou agree to these terms and conditions, please sign below and return t0 begin the loan process: A 05/21/2020 DMI Home Solutions, LLC Date By: David Herrera Upon satisfaction and completion 0f due diligence outlined herein, I anticipate being in a position to close your loan within 7-10 business days. Please call me with any questions Sincerely,%%w~ Damon Bowers, Principal Private Capital Investments This letter should not be construed as afinal commitment to lend, Private Capital Investments (PC!) reserves the right to approve or declineyour loan upon further due diligence and shall be indemnified ofany penalties orgrievan'ces due t0 non-performance. PCI is issuing this letter to show our intent and desire to provide youfinancingl contingent upon verification ofyour capacity as a borrower and satisfaction ofour underwriting guidelines. Upon said verification and satisfaction, we will commit refunding yourloan request. REAL ESTATE FINANCING ' SALES ° TRUST DEEDINVESTMENTS 3201 DanviHe Boulevard‘ #170, Alamo, California 94507 0 Ph. 9258311814 o Fax 925.855.1212 www.privatecap.net
