Delaware Court Denies Plaintiffs Summary Judgment, Grants Defendants Partial Summary Judgment

IN THE SUPE RIOR COURT O F THE STATE O F DEL AWARE MARK III ME DIA, INC., a) Wyoming c orporation; and) WYOMEDIA CORP., a Wyom ing) corporation.) Plaintiffs,)) v.) C.A. No. N25C- 05 -343-PRW) CCLD BIG HORN TELE VISION LLC, a) Delaware limi ted liability company;) and FRONT RANGE TELEV ISION) LLC, a Delaw are limited l iability) company,) Defendants.) Submitted: Decem ber 2, 2025 Decided: Februar y 27, 2026 Upon Plaintiffs ’ Mo tion for Sum mary Judgme nt, DENIED. Upon Defendan ts ’ Cross-Motion f or Partial Summ ary Judgmen t, GRANTED. MEMORANDUM OPINIO N AND O RDER Thomas E. Hanson, Jr., Esquire (argued), B ARNES & T HORN BURG LLP, Wilming t on, Delaware, Attor n ey for Pla i ntiffs M a rk III Medi a, Inc. and Wy omedia Corp. Lakshmi A. Muthu, Esquire, and Michael A. Laukaitis, Esquire, Y OUNG C ONAWAY S TARGATT & T AY LOR, L L P, Wilmingto n, Delaware; Charles George, Esquire (argued), W YRIC K R OBBINS Y ATES & P ONTO N LLP, Raleigh, North Carolina, Attorneys for Defendants Big Horn Television LLC and Front Range Televisio n LLC. WALLACE, J.

Access is fundamenta l to the use of real property. In most settings, access is assumed: a p arcel one buys abuts a public thoroughfa re, the right and abili ty to enter it follows natural ly. In more remote regions — where federal tracts stretch for miles and private ly owned l and i s interlaced with federal property 1 — access may depend not on geography alone, but on ea sements, licenses, and government approval. T h is case centers n o t on the physical ability to reach land, but the contrac tual representation of the right to do so. Plaintiffs Mark III Media, Inc., and Wyomed i a Corp. sold twelve broadcas t television stations to Defendants Big Horn Television LLC and Front Range Television LLC via tw o asset purchase agreements. 2 Amo ngst the assets sold were particular sites in th e State of Wyoming. 3 The parties now disagree on the contractual pr ovisions addressi ng access to those loca t ions. 4 1 See, e.g., Iron Bar Holdings, LLC v. Cape, 674 F. Supp. 3d 1059 (D. Wyo. 2023), aff ’ d, 131 F.4th 1153 (10th Cir. 2025). 2 Compl., at ¶ 1 (D.I. 1). Plaintiff Mark III Media, I nc. is a Wyoming corporation with its principal place of business located in Caspe r, Wyoming. Compl. at ¶¶ 1, 5. P laintiff Wyomedia Corp. is likewise a Wyoming corporation with it s principal place of busi ness located in Casper, Wyoming. Compl. ¶¶ 1, 6. They will be collectively referred to as “Sellers.” Defendant B ig Horn Television LLC is a Delaware Limited Liability Company. Compl. ¶ 7. Defendant Front Range Television LLC is likewise a Delaware Limited Liabilit y Company. Compl. ¶ 8. They will be collectively referred to as “Buyers.” 3 See generally Compl.; Defendants ’ Answer to Plaintiffs ’ Compl aint and Counter Claim (D.I. 5) [hereinafter “ Defs. ’ Countercl. ” ]. 4 See generally Compl.; Defs. ’ Countercl.

I. FACTUAL AND P ROCEDURAL BA CKGROUND A. F ACTUAL B ACKGROUND On October 7, 2019, Mark III and Big Horn entered into an Asset Purc hase Agreement (the “ Mark III APA ”) 5 through which Mark III sold five broadcast television stations and assets used for their operation to Big Horn. 6 The tota l purchase price was $10,733, 333 with $1,111, 7 15 of the purcha s e price placed into escrow. 7 On the same day, Wyomedia and F ront Range entered into a separate Asset Purchase Agreement (the “ Wyomedia APA ”). 8 Wyomedia sold seven broadcas t television stations and assets used for their operation to Front Range. 9 The total purchase price was $1,766,667, plus the assumption of certain as sumed liabilit ies; $182,990 of t h is p u rchase pr i ce wa s placed into escr ow. 10 Central to this dispute are two t ransmi ssion sit es used in t he operation of the television stat i ons: the Carbon Co unty Site and t he Rawl ins Hill Site. 11 The Carbon County Si te was conveyed by Mark III to Big Horn under the 5 Compl. ¶ 13; Defs. ’ Countercl. 5 – 6; Compl. Ex. A [hereinafter “ Mark III APA ” ]. 6 Compl. ¶ 13; Defs. ’ Countercl. 5 – 6; Mark III APA. 7 Compl. ¶ 13; Defs. ’ Countercl. 5 – 6; Mark III APA § 2.3. 8 Compl. ¶ 14; Defs. ’ Countercl. 6 – 7; Compl. Ex. B [hereinafter “ Wyomedia APA ” ]. 9 Compl. ¶ 14; Defs. ’ Countercl. 6 – 7; see generally Wyomedia APA. 10 Compl. ¶ 14; Defs. ’ Countercl. 6 – 7; Wyomedia APA § 2.3. 11 See generally Compl.; Defs. ’ Countercl.

Mark III A PA. 12 Located in Car b on County, Wyoming, t he site sits in a remote area and is reached via an approxima tely 20-mile roadway that origin at es at a public road and crosses a patchw ork of public and private lands. 13 Upon closing, Big H o rn didn ’ t have legal entry on to the site nor did it have a Conditional Use Permit to allow for its operation. 14 The Par ties d i spute whether Mark III repre s ented that both would be available upon c losing. 15 The Rawlins Hill Site was transferred by Wyomedia to Front Range under the Wyomedia APA. 16 Wyomedia had his torically operate d at thi s locatio n pursuant to a Com munications Use Lease with the United States Department of Inter i or ’s Bureau of Land Management (the “ BLM ”). 17 But th at lease had expired severa l years before the transaction closed. 18 After th e expiration, Wyomedia rema i ned in possession and co ntinued paying an nual rent to the BLM. 19 The Partie s dispute whether Wyomedia ’ s representations in the APA were breached by the failure to 12 See generally Mark III APA § 4.12(d), Schedule 4.12(d). 13 Compl. ¶ 26; Defs. ’ Countercl. ¶ 14; see generally Pls.’ Op. Br. MSJ Ex. K. 14 Compl. ¶¶ 26 – 33; Defs. ’ Countercl. ¶¶ 26 – 28; Defendants’ MSJ, Ex. D § 3(a) (D.I. 21) [hereinafter “Amendment to Mark III APA”]. 15 Compl. ¶¶ 26, 33; Defs. ’ C ountercl. ¶¶ 18, 26 – 28. 16 See generally Wyomedia APA § 4.12, Schedule 4.12(c) (Updated Schedules). 17 Compl. ¶¶ 36 – 38; Defs. ’ C ountercl. ¶¶ 35 – 38. 18 Compl. ¶¶ 36 – 38; Defs. ’ C ountercl. ¶¶ 35 – 38; see generally Defs.’ Op. Br. PMSJ, Ex. BB. 19 Compl. ¶¶ 36 – 38; Defs. ’ C ountercl. ¶¶ 35 – 38; see generally Defs.’ Op. Br. PMSJ Ex. BB.

deliver a vali d lease at closi ng. 20 Together, these t wo properties give rise to three c ore lega l issues: (1) whether Mark III breached its represe n tation regarding access t o the Carbon County Site; (2) whether Mark III is obligated to reimburse Big Horn for Condi t ional -Use-Pe rmit- related costs; and (3) whether Wyomedia breached its representa t ions and warranties in the Wyomedia APA by failing to convey a valid lea sehold interest in the Rawlins Hill Site. 21 On June 2, 2021, Big Horn and Fr ont Rang e issued a Notice of Claim ag ai nst the funds awaiting release in escrow. 22 As a result, $425,104.7 4 in escrow was not released to Mar k III and W yomedia. 23 B. P ROCEDU RAL B ACKGROUND Mark III and Wyome d ia filed a verified complaint in t he Delaware Court o f Chancery asserting two claims arising from the p arties ’ asset purchase agreeme n ts: Count I, for declarato ry judgment concerning the interpretation and enforcement of the agreements, and Count II, for breach of contrac t. 24 Sel lers also sought specific performance compelling release of escrowed funds. 25 Big Horn and Front Ran ge 20 Wyomedia APA § 4.12(c); Com pl. ¶¶ 36 – 38; Defs. ’ Countercl. ¶¶ 35 – 38. 21 See generally Pls.’ Op. Br. MSJ; Defs.’ Op. Br. PMS J. 22 Compl. Ex. E (D.I. 1). 23 Compl. ¶¶ 39 – 40; Defs. ’ C ountercl. 16 – 17. 24 See generally Compl. 25 See generally id.

answered and asserted countercla ims, including Counter claim Count I, for breach of contract, and C ounterclaim Count II, for d eclarat o ry judgme nt. 26 The Court of Chancery determine d it lacked subjec t matter j urisdictio n because Sellers had an adequate remedy at law and specific performance was not warranted. 27 The acti on was transferred to this Court. 28 And the parties have since filed cross-motio ns for summary j udgmen t. 29 II. PARTIES ’ CONTE N TIONS The Parties agree that the material facts are largely undisputed; t he contest now concerns the proper interpretation of the two APAs and w hether, under the undisputed record, either party is entitled to judgm ent as a matter of law. 30 Sel ler s seek judgment in their favor on Complaint Counts I (Declarat ory Judgment) and II (Breach of Contract). 31 Buyers seek partial summary j udgme nt on Coun tercla im Counts I (Breach o f Contract) an d II (Dec l aratory J udgment). 32 Sellers contend that they breached no representa tions or warranties relat ed to 26 See generally Defs. ’ Countercl. 27 D. I. 26 (Transfer from Chancery Court – Letter Decision Dismissing Case For Lack of Subject Matter Jurisdiction). 28 Id.; see D EL. C ODE A NN. tit. 10, § 1902 (2025). 29 See generally Pls.’ Op. Br. MSJ; Defs.’ Op. Br. PMS J. 30 See generally Pls.’ Op. Br. MSJ; Defs.’ Op. Br. PMS J. 31 See generally Pls.’ Op. Br. MSJ. 32 See generally Defs.’ Op. Br. P MSJ.

the Car bon Coun t y Si t e or the Rawlins Hill Site. 33 Specifically, Sellers mainta i n that the Mark III APA didn’t obligate them to provide access to the Carbon County Site nor are the Sellers, at this time, obligated to assist in obtaining a Conditional Use Permit. 34 Sellers further assert t h at they sati s fied their con t ractual obligation s concerning access to, and a lease for, the Rawli ns Hill Site. 35 O n that basis, Sellers argue that Buyers w rongf u lly refused to author ize release of the es crowed funds and that Sellers are entitled to declarat ory relief, damages, release of the escrow, and attorneys ’ fees p u rsuant t o the a greements. 36 Buyers, relyin g on much of the same factual record, argue the opposite. 37 Buyers conte nd that the undisputed facts establish that Sellers breached certain of the APAs’ representations and warranties. 38 Buyers therefore seek a determination of liability as a ma t ter of law, w ith damage s to be resolved in f u rther pr o ceeding s. 39 Buyers also assert that they are entitled to attorneys ’ fees as the prevailing party, although any a w ard w ould be determined at the concl usion of the action. 40 33 See generally Pls.’ Op. Br. MSJ. 34 See id. at 7 – 21, 26 – 37. 35 Id. at 1 – 23, 38 – 39. 36 See generally Pls.’ Op. Br. MSJ; Defs.’ Op. Br. PMS J. 37 See generally Defs.’ Op. Br. PMS J. 38 See generally id. 39 See generally id. 40 See generally id. at 80.

III. STANDARD O F REVIEW Summary judgment is warranted “‘ if the pleadings, depositions, answers to interrogatorie s, and admi ssion on file, together with the affi d avits ’ sh o w ‘ there i s no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ’” 41 The movan t b ears the initial burden o f proving its mo tion is supported by undisputed facts. 42 If th e movant meets its burden, the non -movan t must show t here is a “ genuine issue for trial. ” 43 To determine whether a genuine issue exists, the Court construes the facts in the light most favorable to the non - movant. 44 “ These well-estab lished stan d ards an d rules for summary judgment apply in full when the parties have filed cro s s-motions for summary judgment. ” 45 Fil ing cross-motions for summary judgmen t does n ’ t act per se as a concession that there are no genuine factual disputes. 46 “ But, where cross-motions for summary judgment 41 Options Clearing Corp. v. U.S. Specialty Ins. Co., 2021 WL 5577251, at *7 (Del. Super. Ct. Nov. 30, 2021) (quoting Del. Super. Ct. Civ. R. 56(c)). 42 Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979). 43 Del. Super. Ct. C iv. R. 56(e); see also Brzoska v. Olson, 668 A.2d 1355, 1364 (D el. 1995) (“ If the facts permit reasonable persons to draw but one inference, the question is ripe for summary judgment. ”). 44 AeroGlobal Cap. Mgmt., LLC v. Cirrus Indus., Inc., 871 A.2d 428, 444 (Del. 2005). 45 Radulski v. Liberty Mut. Fire Ins. Co., 2020 WL 8676027, at *4 (Del. Super. Ct. Oct. 28, 2020); see also Sarraf 2018 Fam. Tr. v. RP Holdco, LLC, 2022 WL 10093538, at *5 (Del. Super. Ct. Oct. 17, 2022); Zenith Energy Terminals Joliet Hldg s. LL C v. CenterPoint Props. Tr., 2023 WL 615997, at *8 (Del. Super. Ct. Jan. 23, 2023). 46 United Vanguard Fund, Inc. v. TakeCare, Inc., 69 3 A.2d 1076, 1079 (Del. 1997).

are filed and n either party argues th e exist en ce of a genuine issue of material fact, ‘ the Court shall deem the moti o ns to be the eq uivalent of a stipulation for decision on t he merits b as ed on the record submitted with th e[m]. ’” 47 “ I f the Court finds that no gen uine issues of material fact exi sts, and the moving part y has demonstrate d [its] entitlement to judgment as a matter of law, then summary judgment is appropriate. ” 48 IV. DI SCUSS ION The Court first must interpret the relevant provisions of the Mark III Asset Purchase Agreement, beginning w ith Section 4.12(d) and its accompanying Schedule, and th en S ection 3(a) concerning Conditional Use Pe rmit reimbur sement. Upon cons t ruing those provisions, t he Court f inds that Mark III breached the Mark III APA by failing to provide the warranted access to the Carbon County Site and by refusing reimburseme nt o f certain C o nditiona l -Use-Permit-related expenses. The Court next turns to the Wyomedia Asset Purchase Agreemen t to determine whether Wy omedia conve y ed “ good leasehold title ” to the Rawlins Hill Site. The 47 Radulski, 2020 WL 8676027, at *4 (alte ration in original) (quoting Del. Super. Ct. Civ. R. 56(h)). 48 Brooke v. Elihu-Evans, 1996 WL 659491, at *2 (Del. Aug. 23, 1996) (citing Oliver B. Cannon & Sons, Inc. v. Dorr-Oliver, Inc., 312 A.2d 322, 325 (Del. Super. Ct. 1973)); see also Jeffries v. Kent Cty. Vocational Tech. Sch. Dist. Bd. of Educ., 743 A.2d 675, 677 (Del. Super. Ct. 1999) (citing Mitchell v. Wolcott, 83 A.2d 759, 761 (Del. 1951)) (“ However, a matter should be disposed of by summary judgment whenever an issue of law is involved and a trial is unnecessary. ”).

Court concludes that it didn’t and that Wyomedia therefore breached its APA. Finally, becau s e dam ages have n ot yet been de termined, t h e Co urt declines t o order release of escrow funds or award attorneys ’ fees at this s tage. Accordingly, Defendants ’ Part i al Motion for Summar y Judgment is GRANTED, and Plaintiffs ’ Motion for Summ ary Ju dgment is DENIE D. A. M ARK III BREA CHED I TS A SSET P URCHAS E A GREEMENT WITH B IG H OR N. The Mark III APA dispute turns on two questions of contract int erpreta tion. First, did Mark III warrant access to the Carbon County Site? Second, i s Mark III required to reimburse Big H o rn for C onditional Use Permit related expenses? Upon answering these questions, the Court finds that Mark III breac hed its repres entations to Big Horn: Mark III warranted indirect access to the Carbon County Site — whic h was no t pr ovided, and Big Horn was perm i tted to request out - of -pocket C onditional Use Permit-relate d expe ns es — which B i g Horn didn’t r eceive. 1. Mark III APA Section 4.12(d) warrants access to the Carbon County Site; that provision w as breached. Did the Mark III APA warrant acce ss to the Carbon County Site? Of course, the answer turns on contract interpretation. Specifically, the Court must d eterm ine how Section 4.12(d) and Schedule 4.12(d) work together and what they represent about access t o the prop erties.

Section 4.12(d) pr ovides: Except as set forth in Schedule 4.12(d), all of the Real Property has direct access to public roads o r streets (or, if not direct access, Seller has the legal and tra nsf errable right either by easement or license to such commercially reasonab l e access as is necessary for the operation of the Stations), such access is not dependent on an y lan d or other real property interest (including a ny easement or license that is not p art of the Real Property) and all utilities and s ervices n ecessar y for the pr oper and l awful condu ct in all material re s pects r eg arding t h e operat ion of the Stations . . . 49 Section 4.12(d) includes an express exception to the access representat i on “ as set forth in Sche dule 4.12(d). ” 50 Thus, the Court must read the Schedule alongside the Section. Schedu l e 4.12(d) t itled “ Real Pro perty – Exceptio n s to Acce ss, ” provides: None of the real property has direct access to public roads except the proper ty located at 1856 Skyvie w D rive, Casper, Wyoming, and the office b u ildin g located at 2 220 Del l Range Blvd. 51 The schedule makes p l ain that only the Sk yview D rive and Dell Range Boulevard pro perties ha ve direct acces s. That muc h is c lear. But the real contest is over what the Schedule means when coupled with the Section’s parenthetical: “ (or, if not direct access, Seller has the legal and transferrable right either by easement o r license to s uch commercially reasonable access as is necessary for t he operation of the Stati o ns) [.] ” 52 Both parties posit the 49 Mark III APA § 4.12(d) (emphasis added). 50 Id., Schedule 4.12(d). 51 Id. 52 Id.

language is unambiguou s. They disagree sharply, however, on the meaning of the “unambiguous” pr ovisions. 53 Mark III argues that t he Schedule disclaimed all access besides those listed there in — so, the Carbon County Site is without any access warranty. 54 Big Horn argues that the Schedule may disclaim direct access to the Carbon County Site, but that Secti on 4.12(d) still guarantees comm erci al ly reasona ble indirect acce ss for the property. 55 In interpreting contractual language, Delaware courts b egin with the written instrument itself. 56 Delaware courts follow t he “ objective theory of contracts, ” which requires interpreting a contract as it w ould be understood by an objective, reasonable third party. 57 The Court must prioritize the parties ’ intenti ons a s expressed in the contract itself, and “ Delaware courts will not destro y or twist 53 Defs.’ Op. Br. PMSJ, 46 – 47 (“ Therefore, because the language of the M ark III – Big Ho rn APA is unambiguous, and Schedule 4.12(a) only disclaimed direct a ccess to the Carbon County Property, Plainti ffs ’ argument that Mark III sp ecifically excepted the Carbon 47 County Tower site from the acce ss rep resentation necessarily fa il s. ”); Pls.’ Op. Br. MSJ, 1, 26 – 31 (“ [a]s detailed below, the contract language is clear that Plaintiffs made no such repre s entation or warranty. ”). 54 Pls.’ Op. Br. MSJ, 28 – 30. 55 Defs.’ Op. Br. PMSJ, 41 – 47. 56 Gunderson v. Trade Desk, Inc., 326 A.3d 1264, 1280 (Del. Ch. 2024) (“ Delaware courts start with the text. And if the text is unambiguous, Delaware courts end there too. ”). 57 Vinton v. Grayson, 189 A.3d 695, 704 (Del. Super. Ct. 2018) (quoting Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153, 1159 (Del. 2010)); Am. Healthcare Admin. Servs., Inc. v. Aizen, 285 A.3d 461, 475 (Del. Ch. 2022); Seaford Golf & Country Club v. E.I. duPont de Nemours & Co., 925 A.2d 1255, 1260 n.7 (Del. 2007).

[contract] language under the guise of construing it. ” 58 “ The true test is n ot what th e parties to the contract intended it to mean, but w hat a reasonable p erson in the position of the parties would have thought it meant. ” 59 Applying that interpretive framework, the Cour t must turn to the language of the provision itself and examine its grammatical structure, since the meaning of the parties ’ agreement is expressed through the specific words a nd cla u ses the y selected. 60 The firs t se n tence o f Section 4.12(d) contains a ma in clause –– “ all of the Real Property has direct access ”— and a parenthetical alternat i ve clause —“ or, if not direct access, Seller has th e legal and transferrable right either by easeme nt or license... ” 61 The disjunctive “ or ” establishes two alternative factual states that would s atisf y t he warranty for any g iven parcel: either “ direct access ” to public roads or “ indirect access ” 62 through a legal and transferrable right of access by easement or license. 58 Am. Healthcare Admin. S ervs., Inc. v. Aizen, 285 A.3d 461, 475 (Del. Ch. 20 22) (citing Rhone- Poulenc Basic Chems. Co. v. Am. Motorists Ins. C o., 616 A.2d 1192, 1195 (D el. 1992)) (alterations in original). 59 Rhone-Poulenc Basic, 616 A.2d at 1196; see also Interim Healthcare, Inc. v. Spherion Corp., 884 A.2d 513, 555 (Del. Super. Ct.), aff ’ d, 886 A.2d 1278 (Del. 2005). 60 Eagle Indus., Inc. v. De Vilbiss Health Care, Inc., 702 A.2d 1228, 1232 (Del. 1997) (“ Contract terms themselves will be controlling when they establish the parties ’ common meaning so that a reasonable person in the position of either party would have no expectations inconsistent with the contract language. ”); G MG Cap. In vs., LLC v. Athenian Venture Partners I, L.P., 36 A.3d 776, 779 (Del. 2012) (“ When interpreting a contract, the Court will give p riority to the parties ’ intentions as reflected in the four corners of th e agreement. ”). 61 Mark III APA § 4.12(d). 62 “ Indirect access ” is a shorthand term the Court uses for the parenthetical in the Mark III APA: “ (or, if not di rect access, S eller has the legal and t ransferrable right either by easement or license to such commercially reasonable access as is necessary for the operation of the Stations)[.] ” Mark

Because “ or ” is used d isjuncti vely, e ither conditio n i s sufficient to satisfy the representation. The use of “ or ” in this way makes grammatical sense h ere. It is also the most com monly und erstood mean i ng and u sage of “ or” in such c o ntexts. 63 The introductory dependen t clause —“ Except as set forth in Schedule 4.12(d) ” 64 — functions as a carve-out from t h e scope of the representation. 65 Grammatical ly, “ [e]xcept as set forth ” 66 modi fie s the entire affirmative statemen t that follows, thereby removing from the scope of the representation any property identified in Schedule 4.12(d). The logical structure is t herefore s traightf orward: all Real Propert y is represented as having direct or legally enforceable indirect access, except for pr operties express ly listed as e xceptions in the Schedule. Schedule 4.12(d) provides: “ N o ne o f the real property has di rect access to public roads e xcept the property located at 1856 Skyview Dri v e, Casper, Wyomi n g, and the office building located at 2220 Dell Range Blvd. ” 67 The Schedule simpl y III APA § 4.12(d). 63 See Weinberg v. Way st ar, Inc., 294 A.3d 1039, 1045 (De l. 2023) (“ First, ‘ and ’ may be interpreted conjunctively or disjunctively. Many l egal authorities support Weinberg ’ s suggestion that ordinarily ‘ and ’ is conjunctive, while ‘ or ’ is disjunctive, and that cou rts will construe each word accordingly, absent strong reasons to break from the general rule. ”). 64 Mark III APA § 4.12(d). 65 No doubt, these types of carve-outs are common in contracts. See Legent Group, LLC et al. v. Axos Financial, Inc. et al., 2025 WL 3124529, at *15 – 16 (Del. Ch. Nov. 7, 2025); Akorn, Inc. v. Fresenius Kabi AG, 2018 WL 4719347, at *80 (Del. Ch. Oct. 1, 2018), aff ’ d, 198 A.3d 724 (Del. 2018) (discussing carve-outs in the MAE context). 66 Mark III APA § 4.12(d). 67 Mark III APA, Schedule 4.12(d).

states which properties have and don ’ t ha ve “ direct access. ” 68 C rucially, however, the Schedule doesn ’ t state that the Sell er lacks o r is not transferring the as- previously-Sectio n -warranted in direct access t o any locatio n. 69 The absence of d irec t access triggers th e second part of the clause, namely that the Seller posses ses indirect access —“ the legal and transferrable right either by easement or license to such commerci ally reasonable acce s s as is necessary for the operation of the Stations[.] ” 70 In Mark III ’ s view, the structure of the Sc h edule an d the Sect ion operates to exclude the remaini ng three p roperti es from any access warranty, meaning it w as not obligated to p rovide Big Horn with either direct or indirect access to the Carbon County Site. 71 But that interpretation is oppugnan t to what is written. Section 4.12(d) states that all property has access either through direct or indirect access except those described in Schedule 4.12(d). Schedul e 4.12(d) l ists no property without indirect access; it instead iden tifies two that have direct access and says no other properties have such direct access. A reasonable person would thusly read that the latter rep resen t ation applies — all the other 68 Id. 69 Mark III APA § 4.12(d), Schedule 4.12(d). 70 Id. § 4.12(d). 71 Pls.’ Op. Br. MS J, 28 – 30. Put simply, Mark III interprets the provision as reading: Only the Skyview Drive and De ll Range Blvd. properties “ ha[ve] direct access to public roads or streets (or, if not direct access, Seller has the leg al and transferrable right either by easement or license to such commercially reasonable access as is necessary for the operation of the Stations)[.] ” See Mark III APA § 4.12(d).

properties h ave i ndirect access. 72 A ccordingly, when the operat i ve language is rea d as a whole, Mark III represented and warranted that the Carbon County Site had indirect acces s. It doesn ’ t. 73 Mark III breac hed its representation s to Big H orn. The Parties have set out additional arg uments relating to other Mark III APA provisions, including Sections 4.3 (Third Party Consents), 4.4 (Government Consents), and other po rtions of Sectio n 4.12. 74 The disagreement about these provisions is largely aimed at answering the question of whether the measures required to obtain access to the site is an encumbrance o r otherwise fit s in to representation s and warranties about g overnmen t approval. 75 But one n eed not resort to these pr o visions to re solve the dispute here. The language of S ection 4.12(d) alone es tablishes a breach of the representation s and warranti es, as the Mark III APA expressly provide s that the conveyed p ropert ies would have either di rect access to public roads or a legal and transferrable right of acces s by easement or li cen se. That representat i on was not fulfilled with res p ect t o the Car bon County Site. 72 See Pivotal Payments Direct Corp. v. Planet Payment, Inc., 2015 WL 111 20934, at *6 (Del. Super. Ct. Dec. 29, 20 15). Mark III invokes interpretive rule expressio unius est exclusio alterius — the expression of one thi ng is the exclusion of the other — but seeks to ascribe a far broader meaning thereto: the non- expression of one thing is the exclusion of all others. Cf. Salzberg v. Sciabacucchi, 227 A.3d 102, 120 n.77 (Del. 2020); see generally Pls.’ Op. Br. MSJ. That’s not how it works. 73 Pls.’ Op. Br. MSJ, 5 – 21. 74 See generally Pls. ’ Answer, 18 – 25; Defs.’ Op. Br. PMS J, 55 – 61; Defs. ’ Reply, 13 – 18. 75 See generally Pls. ’ Answer, 18 – 25; Defs.’ Op. Br. PMS J, 55 – 61; Defs. ’ Reply, 13 – 18.

Mark III contends t hat, even if a breach o ccurred, Bi g Horn isn’t entitled to a remedy because the BLM requires the purchaser to obtain its own right - of - way. 76 Not so. Section 8.3 of the APA expressly provides for indemnification for breache s of representat ions and warranti es. 77 The fact t hat a purchaser may be responsible f or obtaining the right- of -way according to the B LM does n ’ t absolve Mark III o f liability for i ts breach. In fact, it informs the mea sure of dama ges, which is the c ost required to secure the access that was represented but not delivered. In short, the practical realitie s of what could be rep resented and w arranted doesn ’ t affect the Court ’ s legal conclusion of what was represented and warranted 78 — at least t o the extent t hat th e Court reads the provision under the reasonable person s tandar d of contract inter p retati on. 79 Mark III breached the Mark III APA by failing to provide Big Horn with indirect access to the Carbon County Site; Big Horn ’ s cross-motion for partial 76 Pls. ’ Answer, 26 – 28. 77 Mark III APA § 8.3. 78 This is the fundamental purpose of r epresentations and warranties. See Interim Healthcare, 884 A.2d at 548 (“ [T]he extent or quality of plaintiffs ’ due dil igence i s not releva nt to the determination of whether [Seller] breached its representations and warranties in the Agreement. To the extent [Seller] warranted a fact or circumstance to be true in the Agreement, plaintiffs were entitled to rely upon the accuracy of the representation irregardless of what their due diligence may have or should have revealed. In this regard, [Seller ’ s] accepted the risk o f loss... in th e event [of] its . . . breach[]. ”). 79 Manti Holdings, LLC v. Authentix Acquisition Co., Inc., 261 A.3d 1199, 1211 (Del. 2021) (“ Delaware courts read contracts as a whole, and interpretations that are commercially unreasonable or that produce absurd results must be rejected. ”); Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153, 1160 (Del. 2010) (“ An unreasonable interpretation produces an absurd result or one that no reasonable person would have accepted when enter ing the contract. ”).

summary judgment is GRANTE D on its Count I and Count II claims. The o nly question remai n ing is dama g es. 2. Mark I II must pay Big Horn ’ s reasonable o ut - of -pocket costs and expenses in seekin g to obtain a C onditional U s e Permit. The second q uestio n before the Court arises from the role of the 120 -day period set out in Section 3(a). The Section allows for Big Horn to recoup expenses it pays on obtaining a Conditional Use Permit (“ CU P ”) or fo r red u cing t he s ize or dismantling the towers on the site. 80 The partie s d i spute whether Sect i on 3(a) of t he Mark III APA amend ment requires Big Horn to have applied for a CUP within 120 days of closin g, or w h ether the 120-day provi sion ap plies o nly t o Bi g Ho rn ’ s optio n to be reimbursed fo r dismantli ng, reducing, o r disposing of t he tower s located on t he Carbon County Site. 81 Mark III asserts that Big Horn ’ s failure to file a CUP application or to dismantle o r reduce the towers within 120 days b ars its claim for reimburseme nt. 82 Big Horn counter s tha t the 120-day provisio n doesn’t appl y to it s right to reimbursement for costs and ex p enses incurred in seeking to obtain a CUP and that nothing in the language of the contract conditions reimbursement on filing a formal CUP a p plica tion. 83 The provisio n is as fol lows: 80 Amendment to Mark III APA§ 3(a). 81 Pls.’ Op. Br. MSJ, 16 – 21; Defs.’ Op. Br. PMSJ, 64 – 68. 82 Pls.’ Op. Br. MSJ, 16 – 17, 21; Pls. ’ Answer, 29 – 30. 83 Defs.’ Op. Br. PMSJ, 64 – 68; Defs. ’ Reply, 20 – 22.

1. Carbon C ounty Tower Site. (a) Reference is hereby made to the Seller ’ s Owned Real Property in Carbon County, Wyoming as more p articu larly describe d o n Schedule 4.12(a) to the Purchase Agreement (the “ Carbon County Site ”). Following the Closing, the Seller agrees to cooperate with, and use comm ercially reasonable efforts to assist, the Purcha s er in obtaining a conditional use permit to use, own and o perate the towers on such site (the “ Towers ”) as required under applicable local zoning ordinan ces (a “ CUP ”). In appl y ing for a CUP, t he Purchaser will use Wyoming counsel experienced in Car bon County zoning matters and will consult with the Seller be fo re the Purchase r commissions any kind of study that may be n eede d. If th e Purchaser does not secure a C UP within one h undred (120) d ays following the Closing, then, at the Purchaser ’ s option, t he Sell er agrees to promptly reimburse the Purchaser for its reasonable out of pocket costs in dismantling the Towers and disposing of the same or reducing the height of the Towers below 80 ft to b e in zo ning compliance. The Seller ag rees to pro mptly (within 10 business days) reimburse the Purcha s er for all of the Purchaser ’ s reasona ble out of pocket costs and ex p enses in seeki ng to obtain a CUP up to $75,000. 84 Th e Court “ will not ignore a contract ’ s language... w hen doing so would essentially constitute ‘ add[ing] a limitation not found in the plain language of the contract. ’” 85 This is b ecause, “[a]s a general proposition, for a court to add a limitation that is not found within th e express language of the contract is untenable.” 86 “ Delaware courts will not allow ‘ sloppy grammatical arrangeme n t of 84 Amendment to Mark III APA § 3(a) (emphasis o mitted). 85 Rag Am. Coal Co. v. AEI Res., Inc., 1999 WL 1261376, at *5 (Del. Ch. Dec. 7, 1999) (citing E.I. du Pont de Nemours & Co. v. Green, 411 A.2d 953, 956 (Del. 1980); see also Silver Lake Off. Plaza, LLC v. Lanard & Axilbund, Inc., 2014 WL 595378, at *7 (Del. Super. Ct. Jan. 17, 2014). 86 Alpine Inv. Partners v. LJM2 Cap. Mgmt., L.P., 794 A.2d 1276, 1286 (Del. Ch. 2002), as revised (Mar. 28, 2002); DCV Holdings, Inc. v. ConAgra, Inc., 889 A.2d 954, 961 (Del. 2005)

the clauses o r mistakes in punctuation to vitiate the manifest intent of the parties a s gathered from t he lan guage of the co n tract. ’” 87 With all this in m ind, a closer look at the p ro visio n ’ s word ing shows ho w the 120-day period fits i nto the parties ’ respective obligations. The 120-day p rovisio n serves a timing fun ction, b ut it doesn’t s et a deadline for obta i ning or applying for a CUP. 88 Instead, it establish es the point when the Purchaser gains an alternative right: If t he Purchaser doesn’t secure a CUP within 120 days of closing, it may choose to dismantle, dispose of, or reduce the tower s, and the Seller must reim burse those costs. 89 But the Purchaser could not request expenses for reduction i n the tower s immediately –– it must wait the 120-day p eriod. Its right to reimbursement for expenses incurred in seeking to obtain a CUP stands apart from the 120 - day timeline. There, the contract expressly obligates the Seller to reimburse the Purchaser “ for all of the Purchaser ’ s reasonable out of pocket costs and expenses in seeking to obtain (“Specific language in a contract controls over general language, and where specific and general provisions conflict, the specific provision ordinarily qualifies the mea ning of the general one.”). 87 Segovia v. Equities First Holdings, LLC, 2008 WL 2251218, at *9 (Del. S uper. Ct. May 30, 2008) (citing Interim Healthcare, 884 A.2d at 555). 88 Amendment to Mark III APA (“ In applying for a CUP, the Pur chaser will use Wyoming counsel experienced in Carbon County zoning ma tters and will consult with the Seller before the Purchaser commissions any kind of study that may be needed. If the Purchaser does not secure a CUP within one hundred (120) days following the Closing, then, at the Purchaser ’ s opti on, the Seller agrees to promptly reimburse the Purchaser for its reasonable out of pocket costs in dismantling the Towers and disposing of the same or reducing the height of the Towers below 80 ft to be in zoning compliance. ”). 89 Id.

a CUP up to $75,000, ” 90 without reference to any timeframe. The contract place s the $75,000 reimburseme nt as Seller’s own affirmative obligation, free o f conditional or temporal modifiers. The 120-day timeline is wholly unrelated to the “ seeking to ob t ain a CUP. ” 91 Mark III argues that, read this way, the provision allows for an unlimited time that Big H orn c ould seek the $75,000 reimbursement. 92 It doesn’t. It is a fundamental principle of contract law that if no time for p erformance is fixed in contract, then the Court can imply a rea sonable time. 93 The Mark III APA cl osed o n June 4, 2020, 94 and that the second and final escrow installment was to be released 15 months af t er cl osing. 95 Big Horn submitted its Notice of Claim on June 2, 2021, seeking reimbursem ent for its CUP -relate d expenses months before the release of the escrow f unds. 96 That is reasona ble. 90 Id. 91 Id. 92 Pls. ’ Answer, 29 (“ Defendants ’ interpretation would also yield an illogical and absurd result, whereby Mark III has a n endless obli gation to pay costs associated with Big Horn obtaining a CUP. Under such interpretation, there would be n o limit on the amount of time Big Horn could wait to obtain a CUP and impose the costs on Mark III. ”). 93 Martin v. Star Pub. Co., 126 A.2d 238, 244 (Del. 1956) (“If no time for performance is fixed [in a contract], the court will imply a rea sonable time”); Sali sbury v. Credit Serv., 199 A. 674, 683 (Del. Super. Ct. 1937) (“[A]pplying the usual rule that whe re no time for the performance o f a contract is fixed by it, the law will assume that a reasonable time is intende d. ”) 94 Compl. ¶ 15; Defs. ’ Countercl., 7. 95 Mark III APA § 2.3(c) (“ On the date that is fifteen (15) mont hs aft er the Closing Date, the Escrow Agent will pay t o the Seller the portion of the interest and earnings on the Indemnity Escrow and any amounts remaining in the Indemnity Escrow ”). 96 Compl. Ex. E.

Accordingly, the Court finds that Section 3(a) doesn’ t require Big Horn to apply for a CUP within 120 d ays of closing as a condition to reimbursemen t. Big Horn ’ s mo t ion for p artial summary judgment is G RANTED as to Count I and Count II with regar d to the Mark II I APA breaches. B. W YOMEDIA, LIKEWISE, BREACHED ITS A SSET P URCHASE A GREEMEN T WITH F RONT R ANGE. This next issue arises from the sale of broadcasti ng assets by Wyomedia to Front Range. Among th os e assets was Wyomedia ’ s interest in the Rawlins Hill Site — a communications tower lo cation situated on fed eral land administered by the BLM. 97 Th e Parties agree that f or years Wyomedia had operated facilities at Rawlins Hill under a Communications Use Lease issued by BLM. 98 That lease expired prior to closing, but Wyomed i a continued to occupy the site and to remi t annual rental payments to BLM. 99 In the Wyo med ia APA, Wyomedia made the following repre sentation: 4.12 Real Prope rty Schedule 4.12(c) lists the Leased Real Property, which is all o f the real property leased to the Seller and used o r held for use in connection with the Stations. Except as set forth on Schedule 4.12(c), t he Seller has good leasehold title to its interests in the Leased Real Property, free and cl ear of all Encumbrance s, except for Permitted Encumbrances. All Improvements located on the 97 Pls.’ Op. Br. MSJ, 2 – 3; Defs.’ Op. Br. PMSJ, 33. 98 Compl. ¶¶ 36 – 38; P ls.’ Op. Br. MSJ, 2 – 3; Defs.’ Op. Br. PMSJ, 30 – 33. 99 Compl. ¶¶ 36 – 38; P ls.’ Op. Br. MSJ, 2 – 3; Defs.’ Op. Br. PMSJ, 30 – 33.

Leased Real Property (i) are i n reasonable condition and repair in accordance w ith nor mal and c ustomary industry pract i ces (ordinary wear and tear excepte d), and (ii) are availa ble for immediate use in the operations of the Stations as currently conducted. With res pect to the Leased Real Property, the Seller is in peaceable possession under eac h such Real Pro perty Lease. Each of the Lease s relating to the Stations is accurately identified and described (including the address of the Leased Real Property) on Schedule 4.12(c), and each Lease is in full force and effect, an d there exists no default or eve nt of default (or condition which, with the giving of notice or the passage of time, or both, would create a default or event of default) on the part of the Sel ler under any such Lease, nor, to the Knowledge of the Seller, by any Third Part y to such Lease. The Seller h as provided Purch aser with correct and complete copies of such Leases for the Leased Real P roperty, including a ll amendments, sche dules, addenda and exh ibits thereto. 100 The Rawlins H ill Lea se is listed i n Sche dule 4.12(c): 5. Communicati ons Use Lease, dated as o f February 21, 2003, b y and between Seller (f/k/a Wyomin g Channel 2, Inc.) and Unite d States of Amer ica, acting through the B ureau of La n d Management, Department o f the Int erior. Transm i tter Inf o rmation: - KFNR 101 The record isn’t in d ispute. When the Parties closed the transacti on, the Communication s Use Lease for the Rawlins Hill Site had al ready lapsed. 102 Although Wyomed i a h ad made i ts rental payments, BLM had not renewed t he lease, and Wyomedia d idn’ t possess an enforceable leasehold interest in the property. 103 As part of the Wyomedia APA, Wyomedia represente d that it possessed “ good 100 W yomedia APA § 4.12(c) (emphasis omitted). 101 Id. at Schedule 4.12(c) (Updated Schedules) (emphasis in original). 102 Compl. ¶¶ 36 – 38; Pls.’ Op. Br. MSJ, 2 – 3; Defs.’ Op. Br. PMSJ, 30 – 33. 103 Compl. ¶¶ 36 – 38; Pls.’ Op. Br. MSJ, 2 – 3; Defs.’ Op. Br. PMSJ, 30 – 33.

leasehold title ” to the Rawlins Hill Site and that the lease w as “ in full force and effect. ” 104 The Rawlin s Hill Site was expressly l isted in the schedules to the APA as part of the “ Lea s ed Real Pr operty. ” 105 Against this factual b ackdrop, Wyomedia insists that Front Range is responsible for secu ring its own lease, right- of -way, and reclamation bond fr o m the BLM; it cannot shift t hose obligations back to Wyomedia here. 106 But Wyomed ia didn’t promise to transfer an opportunity for Front Range to create a property interest; i t p rom i sed to transfer a property int erest it already possessed. 107 The AP A warranted “ good leasehold title ”— not an expired lease and a pathway to potentia l authorization. 108 Whether the B LM require s t he purchaser to post its own bond doesn’t relieve Wyo media o f t he obligat ions it v oluntar ily undertook in the contract; a seller may not redefin e its representa tions t o align with a regulatory proces s after the fact. 109 Wyomedia represented that it held a v alid leasehold interest and legal access 104 W yomedia APA § 4.12(c), Schedule 4.12(c) (Updated Schedules). 105 Id. 106 Pls. ’ Answe r, 35; P ls.’ Op. Br. MSJ, 38 – 39. 107 W yomedia APA § 4.12(c), Schedule 4.12(c). 108 Id. at § 4.12(c). 109 The question is whether a purchasing p arty can rely on a representation, even when th e representation ca nnot be true. A purchaser can, and it may indeed be deemed reasonable to do so. Interim Healthcare, 884 A.2d at 548; In re Dura Medic Holdings, Inc. Consol. Litig., 333 A.3d 227, 251 (Del. Ch. 2025); Cobalt Operating, LLC v. James Crystal Enters., LLC, 2007 WL 2142926, at *28 (Del. Ch. July 20, 2007).

to the Rawlins Hill Site. 110 Front Range has established its right to judgment on liability for the Rawlins Hill claim. Accordingly, Fr o nt Range ’ s Motion for Summary Judgme n t is G RANTED under Count I (breac h of c ontract) and Count II (declaratory jud gment) with re spect to the Rawlins H i ll Site. C. E SCROW R ELE ASE AND A TTORNEYS ’ F EE S CANNOT Y ET B E DETERMINED. The Parties agree tha t rel ease of the escrow fu nds is governed by Sect ion 2 of the Mark III APA and the Wyom edia APA, 111 an d that attorneys ’ fees may be awarded to the prevailing party under Section 9.3 of those agreements. 112 Sell er s seek to resolve these issues now. 113 Bu t the Court cannot adjudic ate n or has even heard ar gument on t he amount of any recoverable d amages. W ithout such findings, the Court cannot calculate what portion of t he escrow, if any, is properly alloca ble to an i ndemn ification obligation or subject to releas e. No r can it determine which party, if any, has pre vailed for purposes of fee -shifting — though give n all the above it is doubtfu l that w ould be Sellers. Because both the allocat ion of e scrow funds and any award of att o rneys ’ fee s necessarily depend on a final adjudication of damages, Sellers ’ Motion for Summar y Judgment see k ing release o f escr o w and a n award of attorne ys ’ fees is DENIED. 110 W yomedia APA § 4.12(c), Schedule 4.12(c). 111 Compl. ¶ 16; De fs. ’ Countercl. ¶ 48. 112 Compl. ¶ 60; De fs. ’ Countercl. ¶ 46; Mark III APA § 9.3; Wyomedia APA, § 9.3. 113 Se e generally P ls.’ Op. Br. MSJ.

VI. CONCLUS I ON For the foregoing reasons, Defenda n ts ’ Motion for Partial Summary Judgment is GR ANTED, and P l aintiffs ’ Mo t ion for Summary Jud gment is DENIED. IT IS SO ORDE R ED. / s / Paul R. Wa llace _______________ ____ Paul R. Wallace, Judge