John R. Lund (4368)

Kara L. Pettit (8659)

SNOW, CHRISTENSEN & MARTINEAU

10 Exchange Place, 11th Floor

Post Office Box 45000

Salt Lake City, UT 84145-5000

Telephone: (801) 521-9000

Facsimile: (801) 363-0400

Howard M. Shapiro (pro hac vice)

Jonathan E. Paikin (pro hac vice)

Christopher E. Babbitt (pro hac vice)

WILMER CUTLER PICKERING HALE and DORR LLP

1875 Pennsylvania Avenue, NW

Washington, DC 20006

Telephone: (202) 663-6000

Facsimile: (202) 663-6363

Attorneys for Defendants United Park City Mines Company,

Talisker Land Holdings, LLC, Talisker Land Resolution LLC,

and Talisker Canyons LeaseCo LLC

IN THE THIRD JUDICIAL DISTRICT COURT IN AND FOR

SUMMIT COUNTY STATE OF UTAH

GREATER PARK CITY COMPANY, a Utah

corporation, and GREATER PROPERTIES,

INC., a Delaware corporation,

Plaintiffs/Counterclaim Defendants,

vs.

UNITED PARK CITY MINES COMPANY, a

Delaware corporation, and TALISKER LAND

HOLDINGS, LLC, a Delaware limited liability

company, et al.,

Defendants/Counterclaimants.

DEFENDANTS UNITED PARK CITY

MINES COMPANY AND TALISKER

LAND HOLDINGS, LLCS REPLY MEMORANDUM IN SUPPORT OF

MOTION FOR PARTIAL SUMMARY

JUDGMENT ON THEIR UNLAWFUL

DETAINER COUNTERCLAIM AND AN

ORDER OF RESTITUTION

Case No. 120500157

Judge Ryan Harris

2

SUMMARY

Nearly three years after their Leases expired, GPCC/GPI remain in unlawful possession

of Taliskers land, reaping millions of dollars of profit each year and continuing to deprive

Talisker of the beneficial use of its own property. Plaintiffs Opposition makes clear that they

will go to great lengths to keep prolonging this litigation as long as possible solely to delay the

consequences of their own poor business decisionsfirst their mistake in failing to renew their

below-market Leases, and then their compounding that mistake by choosing to abandon

negotiations with Talisker and instead tie the land up in litigation. The unlawful detainer statute

should foreclose any further delay by Plaintiffs. It provides for immediate enforcement of an

order of restitution upon entry of a judgment of unlawful detainer. See Utah Code 78B-6-811.

As the Supreme Court has explained, the unlawful detainer statute exists to provide a speedy

resolution on the issue of possession. Osguthorpe v. Wolf Mountain Resorts, LC, 2010 UT 29,

23, 232 P.3d 999 (citations omitted). GPCC/GPIs efforts to further delay their eviction, based

only on ancillary issues that do not support any right to remain in possession, should be rejected.

First, as discussed in Section I, there are no disputed issues of material fact with respect

to any of the elements of unlawful detainer, all of which will be easily met if the Court declines

to excuse Plaintiffs failure to renew their Leases.

Second, as discussed in Section II, the motion is timely and the question of unlawful

detainer is ripe for adjudication. Even if Plaintiffs were ultimately to prevail on their claims

asserting a violation of the prohibition on sale (POS) and right of first refusal (ROFR), those

claims have no bearing on the question of Taliskers right of possession. Plaintiffs have

3

conceded that their POS and ROFR rights were extinguished in August of 2013 by Taliskers

notice to quit and are no longer in effect. Transcript of April 8, 2014 Hearing, p.106, lines 18 to

25. And they have conceded that nothing prevents Talisker and Vail from re-entering the same

transaction today, at least with regard to the improved portions of the land which is where the

resort actually operates. Id. p. 107, lines 18 to p. 108 line 2. As to the unimproved portions of

the land, they claim only a chance to negotiate for those lands with the leverage of having the

Vail-Talisker transaction unwound and no right to continuing possession flows from that. Id. p.

109 lines 1423. Whatever the results of the pending motions concerning the prohibition on sale

and right of first refusal, they can be dealt with later as needed and should not further frustrate

Taliskers current right to be restored possession of all of its lands.

Third, as discussed in Section III, GPCC/GPIs arguments that they should retain

possession until the Court adjudicates their claim that they can remove the ski lifts before they

vacate are wrong and premature. Utah Code 78B-6-812(1) and (2)(b) provide for a hearing,

held within 10 days after issuance of the restitution order, at which the Court can decide whether

GPCC/GPI are entitled to remove the lifts. In other words, adjudication of this type of ancillary

dispute comes after the order of restitution is issued; it is not a basis for delaying issuance of the

order itself.

Fourth, as discussed in Section IV, GPCC/GPIs argument that the Court cannot rule on

this unlawful detainer motion until after an appellate court reviews all of the Courts rulings in

this case puts the cart before the horse. Questions about whether GPCC/GPI will be entitled to

seek interlocutory appeal, whether the Court should stay eviction pending appeal, and the

4

amount of bond required were it to do so, are not before the Court on this motion. The only

question before the Court is whether it should enter partial summary judgment in favor of

Talisker on its unlawful detainer counterclaim and issue an order of restitution requiring

GPCC/GPI to vacate the premises. If GPCC/GPI choose to appeal the Courts decision, or seek

a stay of the order, there is a clearly prescribed process for seeking such relief.

RESPONSE TO GPCC/GPIS STATEMENT OF ADDITIONAL FACTS

None of GPCC/GPIs additional facts relates in any way to the elements of unlawful

detainer or whether Talisker has a right to be restored possession of the property. They are

immaterial to Taliskers motion. Taliskers response to GPCC/GPIs additional facts is attached

as Exhibit A.

ARGUMENT

I. THERE ARE NO DISPUTED FACTS RELEVANT TO UNLAWFUL DETAINER AND AN ORDER OF RESTITUTION.

The statutory elements of unlawful detainer are straightforward: (1) the tenant remains in

possession of real property; (2) after expiration of the term of the tenants lease or tenancy at

will; and (3) after having been duly served with a notice to quit. Utah Code 78B-6-802. Each

of these elements is present here.

GPCC/GPI remain in possession of Taliskers real property. Taliskers Statement of Undisputed Facts (SOF) 13; Pltfs. Response to Defs. SOF 13.

If the Court denies Plaintiffs Motion for Reconsideration and grants Taliskers Motion for Summary Judgment on Plaintiffs Equitable and Nondisclosure Claims, the Court will have determined that the Leases expired.

5

GPCC/GPI were duly served with a notice to quit on August 28, 2013. SOF 8-9; Pltfs. Response to Defs. SOF 8-9.

These are the only material facts relevant to this motion, and they are undisputed. Talisker is

entitled to judgment as a matter of law in its unlawful detainer claim and, by statute, the

automatic result of such a judgment is an order for the restitution of the premises as provided in

Section 78B-6-812. See Utah Code 78B-6-811(1)(b).

II. TALISKERS MOTION IS TIMELY.

GPCC/GPI argue that Taliskers motion was both too late and too early. Neither is

correct.

A. Taliskers Motion Is Not Too Late.

GPCC/GPIs assertion that the deadline to file all dispositive motions was February 7,

2014, Pltfs. Opp. Mem. at 8, and that, therefore, Taliskers Motion is late, is not correct. The

Courts July 30, 2013 Scheduling Order stated: Dispositive motions on the remaining portions

of Plaintiffs First Cause of Action for Declaratory Relief that do not necessarily involve expert

discovery shall be filed by February 7, 2014. Scheduling Order from July 30, 2013 Conference

at 2 (emphasis altered from original).1 The parties later elected to proceed with dispositive

motions on GPCC/GPIs Seventh and Eighth Causes of Action alleging violations of the

prohibition on sale/right of first refusal provisions on the same schedule. This motion does not

relate to Plaintiffs First, Seventh or Eighth Causes of Action, but rather to Taliskers unlawful

1 By comparison, the order also stated that: Fact discovery on all claims, including the claims

added via the Second Amended Complaint, shall be completed by January 17, 2014. Scheduling Order from July 30, 2013 Conference at 2 (emphasis altered from original).

6

detainer counterclaim, which was not discussed at the July 30th

conference and was not even

filed until October 28, 2013. Moreover, the motion was promptly filed on March 14, 2014,

following the Courts denial of GPCC/GPIs motion to dismiss the unlawful detainer claim on

February 20, 2014, and GPCC/GPIs filing of their answer on Thursday, March 6, 2014

admitting that they continue to occupy and possess the Leased Premises. Reply to Paragraphs

66-81 of the Counterclaims of UPCM and TLH, dated March 6, 2014, at 69. The motion is

timely.

B. Taliskers Motion Is Not Premature.

GPCC/GPI assert that Taliskers motion is premature because the Court has not yet

adjudicated their motion for reconsideration, nor has the Court ruled on Taliskers motion for

partial summary judgment on GPCC/GPIs claims of waiver and estoppel. Talisker agrees that

the outcome of those motions will determine whether the second element of unlawful detainer is

satisfied i.e., whether GPCC/GPIs Leases expired. The Court heard those motions on April 3,

and if the Court rules in Taliskers favor, then all elements of unlawful detainer will have been

met and this motion will be ready for adjudication. Accordingly, all of the parties agreed that a

Hearing on this motion should be set for the earliest available date after the Court decides the

motions that were heard on April 3.

GPCC/GPI also assert that Taliskers motion is premature because the Court has not yet

ruled on their claims for violation of the POS and ROFR. The Court heard argument on these

claims on April 8, and those issues will be also decided before the Court considers this motion.

If Talisker prevails, then GPCC/GPIs argument here would be mooted. But, even if the Court

7

does not grant summary judgment to Talisker on the POS/ROFR claims, the those claims have

no bearing on Taliskers current possessory rights.

1. Prohibition on Sale

GPCC/GPI admit that a violation of the POS provision entitles them, at most, to an

order unwinding the transfer of ownership and control of all improved portions of the Leased

Premises. Pltfs. Opp. Mem. 1; see also Transcript of April 8, 2014 Hearing, pp.106-109

attached as Exhibit B. Even if Plaintiffs obtained such an order, it would not give them any right

to be on the property. As GPCC/GPI have stated, it would only, at best, give them another

chance to negotiate for the unimproved lands with the leverage of having the Vail-Talisker

transaction unwound. Id. at p. 109 lines 1423. But neither Talisker, nor any of its parent

companys members, has any interest in selling or re-leasing any portion of the premises to

GPCC/GPIboth have made clear that they believe the Vail transaction to be in Taliskers best

interests. See Bistricer Decl. at 5-6 and Iannazzo Decl. at 6-8, attached as Exhibits C and

D.

Talisker and its parent company members all unequivocally desire to promptly evict

Plaintiffs from the premises and allow Vail to begin operations on the property. See Bistricer

Decl. at 8 and Iannazzo Decl. at 7. Talisker and its parent company members view the

agreement they were able to achieve with VR CPC Holdings as more beneficial than any

agreement that could be achieved with GPCC/GPI, which had already rejected Taliskers

proposed new lease terms and abandoned any further negotiations long before discussions with

Vail began. See Bistricer Decl. at 5-6 and Iannazzo Decl. at 6, 8. Plaintiffs wish, despite

8

clear evidence to the contrary, that Talisker might choose them over Vail as its preferred tenant

is no basis for depriving Talisker of its right to immediate possession under the unlawful detainer

statute.

GPCC/GPI also argue that the Court must determine which of the Defendants, if any,

now has the right to possession in light of Defendants alleged violation of paragraph 14 of the

Resort Area Lease and paragraph 13 of the Crescent Ridge Lease. Pltfs. Opp. Mem. 12. It is,

however, undisputed that TLH is the fee owner of the land. SOF 2. Under the unlawful

detainer statute, Utah Code. 78B-6-801(5), it is simply irrelevant whether there was a change in

management or control of TLH or its corporate affiliates. As the undisputed owner of the

premises, TLH is entitled to be restored to possession of the premises, regardless of who may

have an interest in TLH, or what is done with the property after it is restored to TLHs

possession. There are no circumstances by which an adjudication of the POS claims could

somehow give GPCC/GPI any right to remain in possession of the property.

2. Right of First Refusal

With respect to the ROFR claim, GPCC/GPI argue that their right to obtain unimproved

portions of the Leased Premises precludes a determination that they are in unlawful possession

of the land. They are wrong for two independent reasons. First, the argument at most affects

only the two unimproved portions of the land; even if Plaintiffs were correct, Talisker would still

be entitled to an order of restitution for the improved portions of the property. Second, the right

of first refusal is legally distinct from a right of possession. See Federal Land Bank of Saint

Paul v. Obermoller, 429 N.W.2d 251, 258 (Minn. Ct. App. 1988) (Inferring a right to retain

9

possession until the previous owner is afforded an opportunity to exercise its right of first refusal

conflicts with the unlawful detainer statute which expressly allows a party to recover

possession.). Assuming that GPCC/GPIs ROFR claims had any merit, and setting aside the

fact that Vails ultimate interests in the unimproved portions of the land are a lease and an

easement,2 not fee ownership, GPCC/GPIs preemptive rights under the ROFR would come to

pass only if they satisfied all of the requirements to exercise the ROFR. It is only at that point

that GPCC/GPI would have a right to purchase the unimproved parcels. Plaintiffs right to

possession does not exist today, and the preservation of such right for a future adjudication does

not preclude immediate restoration of the land to its current owner, Talisker.

III. GPCC/GPIS CONTRIVED DISPUTE OVER THE SKI LIFTS HAS NO BEARING ON THE ISSUE BEFORE THE COURT.

GPCC/GPI threaten to remove the components of some, but not all, of the ski lifts on the

Resort before they vacate the premises. 3

Under the express terms of the Leases, they are not

allowed to do so nor may they do so under the applicable case law.4 Most importantly for the

2 In the event of a favorable ruling, Vail would only obtain an easement over the White Pine

Land, which is a portion of the unimproved land. See Limited Liability Company Agreement of

Talisker Land Resolution LLC at 5 and Exh. C (Demising Amendment) 4 (attached as Ex. 18 to 1/31/14 Babbitt Decl. in Support of Defendants Motion for Summary Judgment on Plaintiffs Claim for Violation of the Prohibition on Sale).

3 GPCC/GPI specifically reference the lift towers bolted to concrete footings, the chairs,

the chair grips, the bullwheels, the engines, and the counterweights as the ski lift components they will remove. (Pltfs. Opp. Mem. at 11.) 4 According to the Leases, upon termination all buildings, structures, facilities and

improvements situated upon and which are affixed to the soil become property of Talisker. Resort Area Lease at 19; Crescent Ridge Lease at 20. Ski lifts are affixed to the soil. See,

e.g., Sherburne Corp. v. Town of Sherburne, 207 A.2d 125 (Vt. 1965) (ski lifts were fixtures

because the towers were specifically designed according to the topography of the line of the

particular lift and the lease contemplated that the lifts could not be removed); King Ridge, Inc. v.

10

purposes of the instant motion, the issue of the ski lifts is ancillary to the question of restitution

and, under the statute such matters are to be resolved at a hearing regarding the manner of

enforcement, which should be held within ten days after the Court issues an order of restitution.

See Utah Code Ann. 78B-6-812(4); Butters v. Jackson, 917 P.2d 87, 88 (Utah Ct. App. 1996)

(noting procedural history that challenge to portion of trial courts restitution order that directed

tenants to leave their personal property on the premises was decided at enforcement hearing after

judgment was rendered). GPCC/GPIs argument has no bearing on the question of possession of

the property and does not prevent issuance of an order or restitution.

IV. THE UNLAWFUL DETAINER STATUTE REQUIRES ISSUANCE OF AN ORDER OF RESTITUTION REGARDLESS OF WHETHER THAT

ORDER IS CERTIFIABLE UNDER RULE 54(b).

In a final effort to delay their eviction, GPCC/GPI argue that even if the Court grants

Taliskers motion for summary judgment, the Court should postpone issuing an order of

restitution until all claims in the case have been decided and judgment is final within the

meaning of Rule 54(b). This argument is foreclosed by the express language of the unlawful

Town of Sutton, 340 A.2d 106 (N.H. 1975) (finding the ski lifts, including the towers, terminals, chairs, and cables were part of the real property because they were intimately intertwined with the primary use of the land and that the land could not be used as a ski resort without the

lifts); Daugherity v. Von Roll Habegger of America Inc., 1990 WL 300841 (P. Com. Pl.)

(explaining that a ski lift is obviously an improvement to real estate); Little v. Nat. Serv. Indus.,

Inc., 340 S.E.2d 510, 514 (N.C. Ct. App. 1986) (a chair lift with tower legs bolted to poured

concrete foundations was a fixture); McKeehan v. Butler Township, 30 Pa. D. & C.3d 105, 1983

WL 167 (Pa. Com. Pl. 1983) (finding that the ski lift is part of the operating ski slope, and that it

would be absurd to rule that the lift, foundations for the lift, the cable, and the engine house are

not part of the real property); compare with Sunday River Skiway Corp. v. State Tax Assessor,

573 A.2d 24, 25 (Me. 1990) (holding that ski lift equipment was considered personal property at

the time it was purchased because it was not yet attached to realty). The Washington case cited

by Plaintiffs declined to address the question of whether ski lifts were fixtures, instead holding

that ski lifts were improvements to real property. Pinneo v. Stevens Pass, Inc., 545 P.2d 1207, 1209 (Wash. Ct. App. 1976).

11

detainer statute which could not be more explicit regarding the immediacy of eviction. In a

section titled Judgment for restitution, damages, and rentImmediate enforcementtreble

damages, the statute provides that once a defendant is found to be in unlawful detainer

execution upon the judgment shall be issued immediately after the entry of the judgment. Utah

Code 78B-6-811(4)(a). The judgment in favor of a plaintiff shall include an order for the

restitution of the premises as provided in Section 78B-6-812. Utah Code 78B-6-811(1)(b)

(emphasis added).

GPCC/GPI also suggest that the Court should withhold issuing an order because they

intend to appeal. Such arguments are premature. GPCC/GPIs appellate rights, whatever they

may be, will remain available to them once the Court has ruled on the various motions and

claims, and are not a basis on which the Court can forego making a decision on this summary

judgment motion and the required order for restitution. If GPCC/GPI believe they are entitled to

a stay pending an appeal they may seek to bring, then they will need to file a motion pursuant to

Utah Rule of Civil Procedure 62, after the Court issues any rulings upon which they seek a stay.

CONCLUSION

For the foregoing reasons, Talisker is entitled to summary judgment on the issue of

possession on its unlawful detainer claim and an order of restitution restoring the Leased

Premises to its possession. The process to be followed is clearly prescribed under the unlawful

detainer statute, as well as the rules of civil and appellate procedure.

If this Court dismisses GPCC/GPIs equitable claims and denies their motion for

reconsideration, then:

12

(1) The Court should grant Taliskers motion for summary judgment on unlawful

detainer and issue an order of restitution. The Leases provide that GPCC/GPI must remove all

property from the Leased Premises within sixty days of termination. Resort Area Lease 19;

Crescent Ridge Lease 20. Talisker submits that rather than the three days to vacate prescribed

by statute, the sixty days reflects the parties bargained for agreement as to what time limit

would be reasonable. A proposed order of restitution consistent with Taliskers position is

attached as Exhibit E.

(2) Upon request, GPCC/GPI will be entitled to a hearing on the manner of

enforcement of the restitution order. Utah Code Ann. 78B-6-812(4). The hearing is to be held

within ten days of the request, or as soon thereafter as practicable. Id. Enforcement may be

stayed during this period. Utah Code Ann. 78B-6-812(2)(b). Talisker does not believe

additional briefing is necessary but the court may see fit to request limited briefing on issues not

fully addressed in these motions.5

(3) GPCC/GPI are, of course, free to seek any appeals or stays, to which they are

entitled under the Rules.

5 Alternatively, if the Court finds that further factual development is required on the issue

of the chair lifts (or other improvements), Talisker should be restored to possession in the interim

and these issues can be developed and decided later.

13

Dated this 21st day of April, 2014.

SNOW, CHRISTENSEN & MARTINEAU

By: __/s/ John R. Lund________________

John R. Lund

Kara L. Pettit

WILMER CUTLER PICKERING

HALE and DORR LLP

Howard M. Shapiro (pro hac vice)

Jonathan E. Paikin (pro hac vice)

Christopher E. Babbitt (pro hac vice)

Attorneys for Defendants United Park City Mines

Company an, Talisker Land Holdings, LLC

14

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 21st day of April, 2014, I caused a true and correct

copy of the foregoing to be served upon the following in the manner indicated:

Via Courts Electronic Filing System:

Alan L. Sullivan (3152)

Amber Mettler (11460)

Snell & Wilmer L.L.P.

15 West South Temple, Suite 1200

Salt Lake City, Utah 84101-1004

Attorneys for Plaintiffs

Jonathan A. Dibble (0881)

RAY QUINNEY & NEBEKER P.C.

36 South State Street, Suite 1400

P.O. Box 45385

Salt Lake City, Utah 84145-0385

Attorneys for Defendant VR CPC Holdings, Inc

Michael D. Zimmerman (3604)

Troy L. Booher (9419)

Zimmerman Jones Booher LLC

136 South Main Street, Suite 721

Salt Lake City, Utah 84101

Attorneys for Plaintiffs

Mark James (5295)

Hatch, James & Dodge, P.C.

10 West Broadway, Suite 400

Salt Lake City, Utah 84101

Telephone: (801) 363-6363

Attorneys for Defendants Flera, LLC and Talisker

Canyons Finance Co LLC

Via United States Mail:

Bruce Meyer (pro hac vice)

James Quinn (pro hac vice)

Weil, Gotshal & Manges, LLP

767 Fifth Ave

New York, NY 10153

Attorneys for Plaintiffs

Robert C. Blume (pro hac vice)

Ryan T. Bergsieker ( pro hac vice)

GIBSON, DUNN & CRUTCHER LLP

1801 California Street Denver, CO

80202-2642

Attorneys for Defendant VR CPC Holdings, Inc.

Michael Gill

Daniel Storino

Mayer Brown LLP

71 South Wacker Drive

Chicago, Illinois 60606

Attorneys for Defendants Flera, LLC and Talisker

Canyons Finance Co LLC

_____/s/ Julie Emery______________

EXHIBIT A

1

EXHIBIT A

Talisker responds to the factual statements proffered by GPCC/GPI in the Statement of

Additional Material Facts included in their Opposition to Defendants Motion for Partial

Summary Judgment on their Unlawful Detainer Counterclaim as follows:

1. GPCC has built and maintained on the Leased Premises ski lifts, ski runs, day lodges, restaurants and other winter and summer recreational and resort facilities associated with

the operation of a recreational resort. (Mem. in Support of Plfs. Motion for Reconsideration, filed February 7, 2014, Statement of Facts at 4.) In doing so, GPCC has invested over $98

million since 1998 to develop the Resort. (Id.)

Defendants Response: Talisker does not dispute that GPCC has made improvements to

the Leased Premises, including building and maintaining ski lifts, ski runs, day lodges,

restaurants and other winter and summer recreational and resort facilities. These improvements

are, however, immaterial to whether GPCC/GPI are in unlawful detainer of Taliskers property.

Further, while Talisker does not dispute the general proposition that GPCC spent money to

maintain and develop the Resort since 1998, GPCC has not provided proper support for the

statement that GPCC has invested over $98 million since 1998 to develop the Resort.

2. Although much of the Resorts ski terrain is covered by the Leases, the Resorts base area, parking facilities, and Town Lift base are owned by GPCC and/or Powdr Corp., and

the terrain immediately uphill from the base is owned by non-party PPI and leased by GPCC. (Id.

at 5.) GPCC owns outright the water, snowmaking and sewer infrastructure necessary for the

operation of the Resort. (Id.)

Defendants Response: Undisputed, except it is not accurate that the water,

snowmaking and sewer infrastructure necessary for the operation of the Resort is owned by

GPCC. First, any water, snowmaking, or sewer infrastructure that is affixed to the soil of the

Leased Premises is covered by Paragraph 19 of the Resort Area Lease and Paragraph 20 of the

Crescent Ridge Lease, which provide that such fixtures become the property of Talisker upon

termination of the Leases. Second, at his deposition, Mr. Bistricer was asked: Q: Could you run

2

the Powder Corp Mountain Resort as a ski resort without the base facilities owned by Powder?

A. Yes, you probably can. Q: How? A. Well, technically. But you can access it through you

could access it from the Canyons side, you could access it from the Deer Valley side. And you

dont necessary have to get out of the resort to get out onto the base area. Just more terrain.

Zimmerman Decl., Ex. 7 (Bistricer Dep. at 136:5-14). Finally, GPCC/GPIs assertions in this

paragraph are immaterial to whether GPCC/GPI are in unlawful detainer of Taliskers property.

3. The Resort employs over 1,200 employees and generates hundreds of millions of dollars for businesses and individuals throughout the State by drawing over 1 million local and

out-of-state skiers and summer tourists to Utah every year. (Id. at 6.)

Defendants Response: Talisker lacks a basis to confirm or deny the truth of this

statement. The statement is, however, immaterial to whether GPCC/GPI are in unlawful detainer

of Taliskers property.

4. With the exception of the Jupiter Lift, the Thaynes Lift, and the Motherlode Lift all of the ski lifts on the Resort are constructed so that the ski lift towers are bolted to concrete

footings but are not otherwise affixed to the land. (See Declaration of Jenni Smith, dated April 1,

2014, filed contemporaneously herewith (Smith Decl.) at 3.)

Defendants Response: Talisker does not dispute that some of the ski lift towers are

bolted to concrete footings. Under the plain terms of the Leases, and as a matter of law, the ski

lifts are buildings, structures, facilities and improvements situated upon and which are affixed

to the soil that became the property of Talisker after the Leases expired. Any question

regarding the ownership of the ski lifts should be addressed, if necessary, at the statutory hearing

regarding the manner of enforcement of the restitution order, and has no bearing on whether

Talisker is entitled to the restitution order in the first instance.

5. Should GPCC be required to vacate the Leased Premises, GPCC intends to remove, among other things, the components of the ski lifts on the Resort including but not

limited to the lift towers bolted to concrete footings, the chairs, the cables, the chair grips, the

bullwheels, the engines, and the counterweights. (See id. at 4.)

3

Defendants Response: This assertion is not a statement of fact, and GPCCs intent is

contrary to the plain terms of the Leases. The ski lifts are buildings, structures, facilities and

improvements situated upon and which are affixed to the soil that became the property of

Talisker after the Leases expired. Any question regarding the ownership of the ski lifts should

be addressed, if necessary, at the statutory hearing regarding the manner of enforcement of the

restitution order, and has no bearing on whether Talisker is entitled to the restitution order in the

first instance.

EXHIBIT B

THIRD JUDICIAL DISTRICT COURT, SILVER SUMMIT

IN AND FOR SUMMIT COUNTY, STATE OF UTAH

GREATER PARK CITY COMPANY, et al., : Case No. 120500157 :

Plaintiffs, : :

v :

:

UNITED PARK CITY MINES COMPANY, :et al., :

:

Defendants. : With Keyword Index

MOTION HEARING APRIL 8, 2014

BEFORE

JUDGE RYAN HARRIS

CAROLYN ERICKSON, CSRCERTIFIED COURT TRANSCRIBER

1775 East Ellen Way Sandy, Utah 84092

106

THE COURT: So what is that order going to look1

like? Im just - 2

MR. QUINN: I think the order would simply - 3

THE COURT: - having a hard time getting my mind4

around it. 5

MR. QUINN: - be that the provisions of that deal6

that relate to the PCMR lands would be held to be in7

violation of the seventh and eighth and therefore would be8

required to be undone and not any more complicated than that. 9

Youre not going to order what they do next.10

THE COURT: All right. Lets move over to the Vail11

transaction. Unwinding that seems a little simpler to me in12

my mind anyway because that hasnt fully ripened yet. Its13

contingent in a lot of ways on what happens here. So if I14

were to say, Hey, were going to unwind that deal and go back15

to how everybody was positioned on May 23, 2013, all right I16

think I understand that but help me understand what happens17

next, right? You dont contend - 18

MR. QUINN: Ill give you my - 19

THE COURT: - today standing here today, you dont20

contend that as of today the prohibition on sale and the21

right of first refusal are still in effect, do you?22

MR. QUINN: No, because I do agree that once they23

served the notice to quit that that effectively extinguished24

them. But were not talking about that date. Were talking25

107

about going back prior to that date.1

THE COURT: Correct. So if I unwound it and I2

entered an order that said that entire deal that went down in3

May of 2013 is just void, its done, none of it is good any4

more, whats - 5

MR. QUINN: Yeah, I dont think you necessarily6

would have to do that. You would simply - you could do that7

but I also think that you could sign an order that said that8

to the extent that the provisions of that deal - remember a9

great deal of that deal had to do with the Canyons, that its10

only this other piece, you know, which was obviously11

important to Katz - 12

THE COURT: Fair enough. But lets assume just for13

simplicity sake I said the whole thing is just done because14

you know it affects the whole - I dont know what argument15

you would make for getting me to do it, just for simplicity16

hypothetical say, lets say I unwound the entire transaction17

and said lets just void, its done, ripping it up. Given18

you concession that prohibition on sale and the right of19

first refusal are no longer in effect, whats to prevent20

those same folks from entering into that same deal the day21

after my order?22

MR. QUINN: Your Honor, as I sit here I cant say23

that I can say theres anything to prevent that but at that24

point, given what we now know and what - 25

108

THE COURT: At least with regard to the prohibition1

on sale, I guess I should say.2

MR. QUINN: What we now know is in fact the3

property is greatly encumbered, that its not clear that Vail4

ever understood how encumbered it was. At that point it may5

be that we would be able to negotiate a new deal, I dont6

know. I dont know. We do know that the property right now7

cannot be operated by Vail as a ski resort because it doesnt8

have access to the key things it needs. So the parties9

position has changed and maybe the leverage changes10

significantly.11

THE COURT: You think youd have a shot at12

negotiating something maybe you couldnt have before?13

MR. QUINN: Yes, absolutely.14

THE COURT: What about that argument that Mr.15

Shapiro and I engaged in a very brief colloquy about with16

regard to the ROFR? Assuming that youre right about17

everything else leading up to the ROFR, what do I make of the18

Hawaii Supreme Courts case in Kakowski having to do with19

ROFR being triggered by an offer to purchase a larger parcel20

that has two smaller portions in it that are subject to the21

ROFR? Do you follow my question?22

MR. QUINN: I do follow your question and - 23

THE COURT: It was inartful.24

MR. QUINN: It seems to me that that finding by the25

109

Supreme Court would support our notion that in fact the ROFR1

has, is triggered, particularly in the circumstance here2

where you have a ban on sale. The facts there are a little3

different because as I understood the facts you have this guy4

who owns, you know, a piece of land in the middle of a bunch5

of other land that I think they wanted to expand the golf6

course. 7

By the way, that (inaudible) golf course is a very8

nice golf course. 9

I think that is not quite the circumstances we have10

here. So Im not sure that that portion of the opinion or11

the Supreme Courts decision is really all that relevant to12

the circumstances in this case. 13

THE COURT: I know this hasnt been really briefed14

but your position would be that even assuming theyre right15

that the ROFR only applies to those two, are they red, pink - 16

MR. QUINN: Reddish pink.17

THE COURT: Only applies to those two parcels.18

MR. QUINN: Right.19

THE COURT: You think you would still have a right20

to purchase those two parcels if in fact everything else fell21

into place for you here?22

MR. QUINN: Yes, Your Honor, that is our position. 23

THE COURT: On the same terms as - assuming its a24

sale, on the same terms as Vail was able to - 25

EXHIBIT C

EXHIBIT D

IN THE THIRD JUDICIAL DISTRICT COURT IN AND FOR SUMMIT COUNTY STATE OF UTAH

GREATER PARK CITY COMPANY, a Utah corporation, and GREATER PROPERTIES, DECLARATION OF ANTHONY C. INC., a Delaware corporation, IANNAZZO

Plaintiffs, vs. Case No. 120500157 UNITED PARK CITY MINES COMPANY, a Delaware corporation, TALISKER LAND Judge Ryan Harris HOLDINGS, LLC, a Delaware limited liability company, TALISKER LAND RESOLUTION LLC, a Delaware limited liability company, VR CPC HOLDINGS, INC., a Delaware corporation, FLERA, LLC, a Delaware limited liability company, TALISKER CANYONS LEASECO LLC, a Delaware limited liability company, TALISKER CANYONS FINANCE CO LLC, a Delaware limited liability company, and JOHN DOE CORPORATIONS 1 THROUGH 10,

Defendants.

I, Anthony C. Iannazzo, a United States citizen over the age of 21 years, hereby state and

declare as follows:

1. I have first-hand knowledge of the matters stated in this affidavit, and if called to

do so, could testify competently to them at any hearing.

2. I am an investment professional at V5rde Partners, Inc. ("Varde"), the manager of

Fiera, LLC ("Fiera").

1

3. In my capacity as an investment professional at Varde, I have responsibility for

overseeing and managing Flera's investment in TCFC Finance Co LLC (f/k/a Talisker Canyons

Finance Co LLC) ("TCFC"). TCFC has two Members, Fiera and TCFC Holding Co LLC. Fiera

is presently the Manager of TCFC.

4. Effective June 6, 2013, I was appointed as one of Flera's two representatives on

TCFC's Executive Committee. I have since continued to serve on that Executive Committee.

5. By the time I was appointed to TCFC's Executive Committee, the May 2013

transactions regarding Vail's lease of Canyons Resort and contingent right to lease Talisker Land

Holdings, LLC's land underlying Park City Mountain Resort ("PCMR") (the "Lease") had

already been executed.

6. Based on my review of the Lease, I believe it was the best transaction for TCFC

and its subsidiaries to undertake and was the best way for TCFC and its subsidiaries to maximize

the value from both Canyons and the PCMR land.

7. I understand that Talisker Land Holdings, LLC ("TLH") seeks to evict Plaintiffs

from the land at issue in this case and that PCMR has opposed TLH's pending unlawful detainer

action on the ground that, in PCMR's view, there is a lack of clarity as to whether TLH or Fiera

should be granted possession of the property. Fiera supports that eviction and would make the

same decision to evict PCMR if it were in a position to do so as a result of a ruling from this

Court.

8. I also understand that PCMR has sought an order seeking to unwind the May

2013 transaction. While Fiera would, of course, comply with any Court order, Fiera has learned 2

of no new infoiniation that would change its views of the best way for TLH to maximize the

value of its assets.

I declare under criminal penalty of the State of Utah that the foregoing is true and correct

to the best of my knowledge and understanding.

Executed on April 7, 2014.

Anthony C. Iannazzo

3

EXHIBIT E

John R. Lund (4368)

Kara L. Pettit (8659)

SNOW, CHRISTENSEN & MARTINEAU 10 Exchange Place, 11th Floor

Post Office Box 45000

Salt Lake City, UT 84145-5000

Telephone: (801) 521-9000

Facsimile: (801) 363-0400

Howard M. Shapiro (pro hac vice)

Jonathan E. Paikin (pro hac vice)

Christopher E. Babbitt (pro hac vice)

WILMER CUTLER PICKERING HALE and DORR LLP

1875 Pennsylvania Avenue, NW

Washington, DC 20006

Telephone: (202) 663-6000

Facsimile: (202) 663-6363

Attorneys for Defendants United Park City Mines Company,

Talisker Land Holdings, LLC, Talisker Land Resolution LLC,

and Talisker Canyons LeaseCo LLC

IN THE THIRD JUDICIAL DISTRICT COURT IN AND FOR

SUMMIT COUNTY STATE OF UTAH

GREATER PARK CITY COMPANY, a Utah

corporation, and GREATER PROPERTIES,

INC., a Delaware corporation,

Plaintiffs/Counterclaim Defendants,

vs.

UNITED PARK CITY MINES COMPANY, a

Delaware corporation, and TALISKER LAND

HOLDINGS, LLC, a Delaware limited liability

company, et al.,

Defendants/Counterclaimants.

ORDER OF RESTITUTION

Case No. 120500157

Judge Ryan Harris

TO GREATER PARK CITY COMPANY, a Utah Corporation, and GREATER

PROPERTIES, INC., a Delaware Corporation:

Within 60 calendar days following service of this Order of Restitution, you must vacate

the premises that were the subject of the Resort Area Lease and the Crescent Ridge Lease and

that covered the approximately 3,700 acres of land referred to as the Leased Premises in these

proceedings, remove your machinery, equipment, personal property, and supplies not affixed to

the soil and restore possession of the premises to the defendants Talisker Land Holdings, LLC

and United Park City Mines Company, a Delaware Corporation, or be forcibly removed by a

sheriff or constable. Furthermore, you have the right to a hearing as to contest the manner of

enforcement of this Order of Restitution, in accordance with Utah Code 78B-6-812.

If you fail to comply with this Order of Restitution, the sheriff or constable may, at the

direction of defendants, enter the premises by force using the least destructive means possible to

remove you, your personal property and any persons claiming a right to occupancy from you.

TO THE SHERIFF OR CONSTABLE:

If Greater Park City Company and Greater Properties, Inc., after being served with this

Order of Restitution in accordance with Utah Code 78B-6-812, fail to comply within the time

period prescribed above, you are commanded to, at defendants direction, enter the premises by

force using the least destructive means possible to remove Greater Park City Company and

Greater Properties, Inc., any machinery, equipment, personal property, and supplies not affixed

to the soil , and any persons claiming a right to occupancy from them.

DATED this ________ day of ____________, 2014.

BY THE COURT:

________________________

Honorable Ryan Harris

Third District Court Judge

Insert from: "Exhibits A through E.pdf"Exhibit A - Responses to Additional FactsExhibit B - Excerpts from April 8, 2014 HearingExhibit C - Declaration of Jack BistricerExhibit D - Declaration of Anthony IannazzoExhibit E - Order of Restitution