Snow Covered Capital, LLC v. Weidner

—— FILED ——— RECEIVED —— ENTERED ——— SERVED ON COUNSEL/PARTIES OF RECORD {| Bob L. Olson (NV Bar No. 3783) SNELL & WILMER L.L.P. FEB 27 2004 || 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 CLER || Telephone: (702) 784-5200 DIST ne STRICT COURT Facsimile: (702) 784-5252 BY: OF NEVADA || Email: [email protected] DEPUTY || James D. McCarthy (admitted pro hac vice) Mary Ann Joerres (admitted pro hac vice) || David Reynolds (admitted pro hac vice) Melissa Marrero (admitted pro hac vice) || DIAMOND MCCARTHY, LLP 2711 North Haskell Avenue, Suite 3100 || Dallas, Texas 75204 Telephone: (214) 389-5300 | Facsimile: (214) 389-5399 Email: [email protected] 10 [email protected] [email protected] [email protected] g 12 || Attorneys for Snow Covered Capital, LLC 14 UNITED STATES DISTRICT COURT 15 DISTRICT OF NEVADA | 1g | SNOW COVERED CAPITAL, LLC, Case No.: 2:19-cv-00595-APGNJK z 8 Plaintiff, 17 STIPULATION AND ORDER vs. REGARDING SNOW COVERED 18 CAPITAL’S PRE-FORECLOSURE WILLIAM WEIDNER, ANDREW FONFA, | DAMAGES AND THE CALCULATION OF || DAVID JACOBY, and LUCKY DRAGON LP, | THE BORROWER’S INDEBTEDNESS 20 Defendants.

22 This Stipulation is entered into by and among Plaintiff Snow Covered Capital, LLC |} (“SCC”), Defendant William Weidner, and Defendant Jodi Fonfa, as executrix to decedent estate || of Andrew S. Fonfa (collectively, the “Defendants”, and together with SCC, the “Parties”), by and || through their respective undersigned counsel, as follows: 26 WHEREAS, on May 3, 2016, SCC entered into a Construction Loan Agreement with Lucky || Dragon, LP, a Nevada limited partnership (“LD LP”), whereby SCC agreed to loan LD LP || $30,000,000 pursuant to a Secured Promissory Note (Construction Loan) and $15,000,000 pursuant 1074469v2 4889-408]-6295 | || to a Secured Promissory Note (Line of Credit) (collectively the “Notes”). The Notes contain an || attorneys’ fees provision.

3 WHEREAS, repayment of the Notes was secured by a Construction Deed of Trust (With || Assignment of Leases and Rents, Security Agreement and Fixture Filing) (the “Deed of Trust”) || which encumbered real property located at 300 West Sahara Avenue, Las Vegas, Nevada, then || known as the Lucky Dragon Hotel & Casino (the “Property”’).

7 WHEREAS, Defendants executed and delivered a Recourse Obligations Guaranty (the || “Guaranty”) which was triggered when LD LP filed for bankruptcy.

9 WHEREAS, the Property to be sold to SCC at an October 30, 2018 nonjudicial foreclosure |} sale (the “Foreclosure Sale”).

1] WHEREAS, the trial in this case will be held from February 26, 2024 through March 8, g 12 |} 2024. | js 13 WHEREAS, the trial will address the issues of both the indebtedness (including any pre- || foreclosure damages claimed by SCC) and the fair market value of the Property on and through the i 15 || date of the Foreclosure Sale in order to determine any deficiency amount, if any. | 16 WHEREAS, the Parties have met and conferred regarding the indebtedness issue, and : 17 || regarding the categories and amounts of the pre-foreclosure damages SCC will be seeking at the || forthcoming trial.

19 WHEREAS, the Parties desire to stipulate to the amounts of each category of pre- || foreclosure damages that the Court should include in the calculation of indebtedness in order to: || (a) avoid the expenses associated with bringing expert witnesses to the trial; (b) reduce the length || and complexity of the trial; (c) avoid incurring additional legal fees associated with further litigating || the amount of certain categories of damages; and (d) generally promote judicial economy.

24 NOW, THEREFORE, based on the foregoing and subject to Court approval, the Parties || hereby agree as follows: 26 1. The Parties hereby stipulate to the following categories and amounts of damages, all || of which the Parties agree fall within the “indebtedness” for the purposes of this action (collectively || the “Stipulated Indebtedness”): -2- AR80.AN81.4906 1 ;

| 14 2. The Parties agree that the Stipulated Indebtedness includes the entire amount of || indebtedness (including any claimed pre-foreclosure damages, such as any consequential or other | 16 || alleged asserted damages) and that neither party will attempt to offer evidence at trial to expand || upon or limit the Stipulated Indebtedness. Further, SCC agrees not to offer or argue that there are || any other pre-foreclosure damages other than those agreed upon in the Stipulated Indebtedness.

19 3. This Stipulation reflects a compromise regarding the amounts set forth above and || shall not be construed as an admission or concession as to the validity of any portion of the || Stipulated Indebtedness.

22 4. In light of this Stipulation, the Parties’ expert witnesses, Scott Leslie and Paul || Regan, will not offer testimony in this phase of the trial and their designations as trial witnesses in || the Joint Pretrial Order are withdrawn from this phase of the trial; 25 5. The Stipulation conclusively settles the amounts of those SCC’s damages listed in || paragraph 1, provided that nothing herein shall be construed as a determination of the interest rate, || the proper calculation of interest, and/or the amount of interest to be charged in the post-foreclosure 2g || period should the Court find any deficiency. -3- 4889-4081-6295 1 l 6. Except as otherwise provided herein, this Stipulation shall not prejudice SCC’s || argument that it is entitled to post-foreclosure damages against Defendants pursuant to the || Guaranty, other applicable agreements among the Parties, Nevada’s deficiency judgment statutes, || or other applicable law. Defendants dispute that any deficiency exists and also dispute that any || additional damages (post-foreclosure or otherwise) are available to SCC pursuant to the Guaranty, || other applicable agreements among the Parties, Nevada’s deficiency judgment statutes, or other || applicable law. Nothing in this Stipulation shall prejudice defendants’ arguments that SCC is || foreclosed from recovering post-foreclosure damages.

9 7. Nothing contained herein shall prejudice the right of SCC to allege that it is entitled || to recover additional attorneys’ fees and costs incurred in any period following the Foreclosure Sale || pursuant to, among other things, the Guaranty and/or Federal Rule of Civil Procedure 54; 12 8. Nothing contained herein shal! prejudice the right of the Parties to seek to introduce | 13 |i any evidence that any Party believes to be relevant to the value of the Property on the date of the 18228 14 || Foreclosure Sale.

16228 Beas 15 9. Nothing contained herein shall prejudice any arguments available to Defendants in | = | 16 || this case.

17 10... Nothing contained herein shall prejudice the right of the Defendants to oppose any || request of SCC that it is entitled to recover any damages, attorneys’ fees, and costs it incurred in || any period following the Foreclosure Sale.

20 11. For the avoidance of doubt, nothing herein is intended to modify in any way the }| Court’s Orders dated March 10, 2022 (ECF No. 243) and July 15, 2022 (ECF No. 264); ITIS sos STIPULATED.

33 DATED this 47 day of February 2024. DATED this Z#tay of February 2024.

SNE WILMER L.L.P. HOLLEY DRIGGS ob L. Olson (NV Bar No. 3783) Nicholas J. Santoro (NV BarNo. 0532) > | 3883 Howard Hughes Parkway, Suite 1100 Oliver J. Pancheri (NV Bar No. 7476) Las Vegas, Nevada 89169 300 South 4" Street, Suite 1600 I! Tel: (702) 784-5200 Las Vegas, NV 89101 Fax: (702) 784-5252 Tel: (702) 791-0308 27 Fax: (702) 791-1912 28 and and -4- ARRO_ANR1-67995 1 |} James D. McCarthy (admitted pro hac vice) David Brian Snyder (admitted pro hac vice) MaryAnn Joerres (admitted pro hac vice) FOX ROTHSCHILD || David Reynolds (admitted pro hac vice) 2000 Market Street, 20" Floor Melissa Marrero (admitted pro hac vice) Philadelphia, PA 19103 | DIAMOND MCCARTHY, LLP Telephone: (215) 299-2000 2711 North Haskell Avenue, Suite 3100 Facsimile: (215-299-2150 || Dallas, Texas 75204 Attorneys for Defendant William Weidner Telephone: (214) 389-5300 || Facsimile: (214) 389-5399 Attorneys for Plaintiff Snow Covered Capital || LLC i [ { 7 DATED thig ay of February 2024.

8 HOWAR H ORNEYS PLLC Robert W. Hernquist (NV 710616) 10 3800 Howard Hughes Parkway, Suite 1000 Las Vegas, Nevada 89169 1] Telephone: (702) 257-1483 Facsimile: (702) 567-1568 12 Attorneys for Jodi Fonfa, as Executrix of the Estate of Andrew S. Fonfa | 3313 14 ORDER ; 15 The Court having considered the foregoing Stipulation between the Parties, and good cause | 33 16 || appearing, 17 IT IS HEREBY ORDERED that the Stipulation is approved; and 18 IT IS SO ORDERED. Ge— 19 NE DISTRICT COURT JUDGE DATED: /e¥. + 4.20 -5-