IN THE SUPREME COURT OF THE STATE OF DELAWARE

RIJU RAVINDRAN, BYJU’S ALPHA, §

INC., and TANGIBLE PLAY, INC., §

§ No. 463, 2023

Defendants Below, Appellants, §

§

v. § Court Below: Court of Chancery

§ of the State of Delaware

GLAS TRUST COMPANY LLC, §

in its capacity as Administrative §

Agent and Collateral Agent, and § C.A. No. 2023-0488

TIMOTHY R. POHL, §

§

Plaintiffs Below, Appellees. §

Submitted: July 24, 2024

Decided: September 23, 2024

Before VALIHURA, LEGROW, and GRIFFITHS, Justices.

Upon appeal from the Court of Chancery. AFFIRMED.

Joseph B. Cicero, Esquire (argued), Ryan M. Lindsay, Esquire, Chipman Brown Cicero & 

Cole, LLP, Wilmington, Delaware. Of Counsel: Sheron Korpus, Esquire, David M. Max, 

Esquire, Sondra D. Grigsby, Esquire, Kasowitz Benson Torres LLP, New York, New York 

for Appellants.

Brock E. Czeschin, Esquire, Susan Hannigan Cohen, Esquire, Nicole M. Henry, Esquire, 

Richards, Layton & Finger, P.A., Wilmington, Delaware for Appellee Timothy R. Pohl. 

Lauren K. Neal, Esquire, Elizabeth A. Mullin Stoffer, Esquire, Morris, Nichols, Arsht & 

Tunnell LLP, Wilmington, Delaware for Appellee GLAS Trust Company LLC, in its 

capacity as Administrative Agent and Collateral Agent. Of Counsel: George W. Hicks, 

Jr., Esquire, (argued), Kirkland & Ellis LLP, Washington, D.C. Seth M. Cohen, Esquire, 

Kirkland & Ellis LLP, San Francisco, California. 

VALIHURA, Justice: 
2

INTRODUCTION

This appeal follows a half-day trial on a paper record where the Court of Chancery 

determined, pursuant to 8 Del. C. § 225, that Timothy R. Pohl (“Pohl”) was the sole director 

and officer of Byju’s Alpha, Inc. (“Byju’s Alpha”). Byju’s Alpha is a wholly-owned 

Delaware subsidiary of Think and Learn Private Ltd. (“T&L”), a company founded by 

Byju Ravindran and organized under Indian law. On November 24, 2021, Byju’s Alpha 

and its guarantors, including T&L, entered into a credit and guaranty agreement to govern 

the terms of a loan facility providing an aggregate principal amount of $1.2 billion (the 

“Term Loans”) to Byju’s Alpha. The counterparties were GLAS Trust Company LLC 

(“GLAS”), in its capacity as administrative and collateral agent, and following the loan’s 

syndication, thirty-seven other lenders (the “Lenders”). The Lenders believed an event of 

default had occurred. They had their agent, GLAS, take control and install Pohl as the sole 

director and officer. T&L’s subsidiaries – Byju’s Alpha and Tangible Play, Inc. 

(“Tangible”) – claim that there was no event of default. Therefore, they argue that fellow 

Appellant, Riju Ravindran, who served as Byju’s Alpha’s sole director and officer from its 

formation, remains the sole director and officer of Byju’s Alpha – not Pohl. 

This case requires us to address three main issues. First, is the application of the

credit agreement’s forum selection clause properly before this court? Second, did an 

agreement between the parties require Whitehat Education Technology Private Ltd. 

(“Whitehat”) – a subsidiary of T&L – to become a guarantor and, if so, was GLAS justified 

in exercising its default rights? And third, can Appellants successfully assert an 

impossibility defense on the grounds that it was unforeseeable that the Reserve Bank of 
3

India (the “RBI”) – which sets the regulations for large overseas lending agreements and 

approves who may serve as a guarantor under those agreements – would remove the 

exception that allowed Whitehat to serve as a guarantor? For the reasons set forth herein, 

we AFFIRM the decision of the Court of Chancery. 

I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

A. The Parties

Defendants Below-Appellants are Riju Ravindran, Byju’s Alpha, and Tangible

(collectively, “Appellants”). Byju’s Alpha is incorporated in Delaware and has its principal 

place of business in Illinois.1 Byju’s Alpha was formed for financing purposes and never 

had any active business operations.2 Byju’s Alpha was incorporated two months prior to 

the execution of the credit and guaranty agreement (the “Credit Agreement”). On 

September 27, 2021, Ravindran was appointed as the sole director and officer of Byju’s 

Alpha.3 Tangible is a Delaware corporation with its principal place of business in 

California.4 Non-party T&L is an education technology company formed under Indian 

law.5 Biju’s Alpha and Tangible are wholly-owned subsidiaries of T&L. T&L was founded 

1 A593 (Verified Complaint ¶ 38). See A571–A626 (Verified Complaint Pursuant to 8 Del. C. 225, 

dated May 3, 2023) [hereinafter “Complaint” or “Compl.”]. 

2 Many of the facts are taken from the Court of Chancery’s November 2, 2023 telephonic bench 

ruling at 4:21–5:2 [hereinafter “Bench Ruling”]. See also A575 (Compl. ¶ 4); A1539 (Joint PreTrial Stipulation and Order ¶¶ 34–35, dated July 25, 2023) [hereinafter “Pre-Trial Stipulation”].

3 A1539 (Pre-Trial Stipulation ¶ 36). Both parties recognize that Ravindran was the sole director 

and officer until March 2, 2023. However, on and after March 3, 2023, the parties dispute who 

was Byju’s Alpha’s sole director and officer. Id.

4 A594 (Compl. ¶ 40).

5 Bench Ruling at 4:19–22.
4

by Byju Ravindran – the older brother of Appellant Ravindran.6 Byju’s Alpha, Tangible, 

and Whitehat,7are all subsidiaries of T&L.8 

Plaintiffs Below-Appellees are GLAS and Timothy R. Pohl (collectively, 

“Appellees”). GLAS is a New Hampshire LLC with its principal place of business in New 

Jersey.9 

B. The Credit Agreement

On November 24, 2021, T&L, Byju’s Alpha, GLAS, and others entered into the 

Credit Agreement.10 T&L served as the Parent Guarantor, Byju’s Alpha as the borrower, 

and GLAS as the Administrative Agent and the Collateral Agent.11 The Credit Agreement 

set forth the terms for a loan providing an aggregate principal amount of $1.2 billion to 

Byju’s Alpha (the “Term Loans”).

12

 Byju’s Alpha was expected to pay back the Term 

Loans in quarterly installments of .25% of the aggregate principal, with the remainder of 

the principal due, absent an acceleration, on the Term Loans’ maturity date.13 A syndicate 

6

See A575 (Compl. at 5 n.2) (addressing the familial relationship between Byju Ravindran and 

the Appellant Ravindran). To avoid confusion with his brother, Byju Ravindran’s first name is 

included. We intend no familiarity or disrespect.

7 Whitehat is referred to as “Whitehat India” throughout the Credit Agreement. A52–A284 (Credit 

and Guaranty Agreement among Think and Learn Private Limited and BYJU’s Alpha, Inc., dated 

Nov. 24, 2021) [hereinafter “Credit Agreement”].

8 Bench Ruling at 5:22–23; A674 (Unsworn Foreign Declaration of Riju Ravindran ¶ 9).

9 A592 (Compl. ¶ 36); A60 (Credit Agreement at 1).

10 Bench Ruling at 5:3–5; see A53 (Credit Agreement Title page).

11 Bench Ruling at 5:3–5; see A53 (Credit Agreement Title page). Non-parties Morgan Stanley 

Senior Funding Inc. and JPMorgan Chase Bank, N.A. served as Joint Lead Arrangers and Joint 

Bookrunners. Id.

12 A60 (Credit Agreement at 1). 

13 A594 (Compl. ¶ 42).
5

of thirty-seven financial institutions bought the Term Loans providing the $1.2 billion.14 

The Lenders were given the ability to buy and sell the loans and loan commitments.15 

Lenders who represented more than fifty percent of the total outstanding loan commitments 

under the Credit Agreement were defined as “Required Lenders.”16 

In the event of default, GLAS, at the request of the Required Lenders, could act to 

enforce the Lenders’ rights.17 The loan documents included a pledge agreement and a 

security agreement. The pledge agreement was entered into between GLAS and Byju’s 

Alpha’s affiliate and pledged 100% of Byju’s Alpha’s common stock as collateral for the 

Term Loans.

18

 It entitled GLAS to take control of those shares upon the occurrence of a 

“trigger event.” GLAS’s service of a default notice constitutes a “trigger event” as defined 

by the pledge agreement.19

At the time of the Credit Agreement’s execution, three subsidiaries of T&L, 

consisting of Tangible and two non-parties, entered into the agreement and were referred 

to as the “Initial Guarantor[s].”20 The Credit Agreement contains language discussing 

14 Bench Ruling at 5:10–12; A1593 (Section 225 Trial Transcript at 6:14–19, dated Aug. 4, 2023) 

[hereinafter “Section 225 Trial Tr.”].

15 Bench Ruling at 5:12–13; A203 (Credit Agreement § 10.4(c)(i)). Lenders, however, could not 

sell to the Borrower, the Parent Guarantor, or an Affiliate of the Parent Guarantor. Id.

16 Bench Ruling at 5:16–19; A102 (Credit Agreement § 1.1 “Required Lenders”). We also refer to 

the Required Lenders as the “Lenders”. 

17 Bench Ruling at 5:13–16; A183 (Credit Agreement § 8.1 (p)(i)).

18 Bench Ruling at 8:20–24. 

19 Id. at 9:1–4.

20 A88 (Credit Agreement § 1.1 “Initial Guarantor”).
6

Whitehat acceding to the Credit Agreement as a guarantor after receiving approval from 

the RBI.

21

C. Overseas Direct Investment Regulations

The RBI sets the regulations for Overseas Direct Investment (“ODI”). The ODI 

regulations, which are revised periodically, determine who can serve as a guarantor with

the RBI’s approval. When the Credit Agreement was negotiated and executed, the RBI had 

been operating under the same ODI regulations since 2004 (the “Former ODI 

Regulations”).22 ODI regulations require the approval of the RBI before an Indian entity 

can provide an overseas guarantee when the loan exceeds $1 billion in any financial year 

(the “Amount Test”), or the loan exceeds 400% of the net worth of the guarantor (the “Net 

Worth Test”).23 Because the loans exceeded $1 billion, Whitehat and T&L were required 

to receive RBI approval prior to becoming guarantors.24 Because Whitehat’s calculated 

net worth at the time of the negotiations was negative,25 it failed to satisfy the Net Worth 

Test. However, the Former ODI Regulations allowed a subsidiary to rely on – and in effect 

21 See A153 (Credit Agreement § 5.9(c)).

22 Bench Ruling at 6:2–4; A1314 (Expert Declaration of Mr. Zal T. Andhyarujina, S.A Pursuant to 

10 Del. C. 5356, ¶ 3 (viii), dated June 28, 2023) [hereinafter “Andhyarujina Declaration”].

23 Bench Ruling at 6:7–12; A1314–A1315 (Andhyarujina Declaration ¶ 3 (viii)). 

24 Bench Ruling at 6:16–19. The parties to the Credit Agreement recognized that T&L and 

Whitehat would require approval from the RBI to become guarantors. A100 (Credit Agreement § 

1.1 “RBI Approval”).

25 A675 (Unsworn Foreign Declaration of Riju Ravindran ¶ 15, dated July 14, 2023).
7

“borrow” from – its parent entity’s net worth to satisfy the Net Worth Test (the “Borrowing 

Exception”).26 T&L then acquired Whitehat in August 2020 for $300 million.27 

The Credit Agreement contains multiple covenants concerning the approval from 

the RBI. The key covenants are: (i) Section 5.9(c), which addresses Whitehat acceding to 

the Credit Agreement; (ii) Section 5.17(d), which addresses T&L’s role in helping Whitehat 

accede; and (iii) Section 5.1, which requires the regular submission of financial reports. 

Section 5.9(c) provides that “[o]n and from the earlier of (i) April 1, 2022 and (ii) within 

five Business Days of the date RBI approval is received, Whitehat . . . shall accede to [the 

Credit Agreement] and the Onshore Guarantee Deed as a Guarantor[.]”

28

 Section 5.17(d) 

requires that T&L use commercially reasonable efforts to secure RBI approval on or before 

April 1, 2022:

[T&L] will use its reasonable commercial efforts to procure the RBI approval 

on or prior to April 1, 2022 in order that it and Whitehat India may guarantee 

the Covered Obligations in an amount not less than the Guarantee 

Maintenance Amount and if so obtained, shall ensure that it and Whitehat 

India guarantee . . . the Covered Obligations up to the maximum amount 

permitted by the RBI Approval. For the avoidance of doubt, (i) any failure 

to obtain the RBI approval prior to April 1, 2022 (whether in whole or in 

part) shall not cause a breach of the Guarantee Maintenance Requirement or 

require any mandatory prepayment of the Term Loans . . . .29 

26 Bench Ruling at 6:12–15; A1315 (Andhyarujina Declaration ¶ 3 (x)).

27 A1543 (Pre-Trial Stipulation ¶ 56).

28 A153 (Credit Agreement § 5.9(c)).

29 A157 (Credit Agreement § 5.17(d)) (emphasis added); Bench Ruling at 7:7–23.
8

D. Events of Default

Section 8.1 of the Credit Agreement defines the “Events of Default.”30 Section 

8.1(e), recognizes that an event of default occurs when: 

[A]ny Loan Party shall fail to observe or perform any covenant, condition or 

agreement contained in any of the Loan Documents . . . and such failure shall 

continue unremedied for a period of 45 days after notice thereof from 

[GLAS] to [Byju’s Alpha] (which notice will be given at the request of any 

Lender.)31 

Thus, in the event of default, GLAS may, upon the request of the Lenders, deliver to Byju’s 

Alpha a notice of acceleration and default.32 GLAS would then inform Byju’s Alpha that 

it is exercising its contractual remedies on the Lenders’ behalf, including: “[e]nforc[ing] 

any and all Liens and security interests created pursuant to the Collateral Documents in 

addition to any other remedies available under the Loan Documents or applicable law.”33

These additional remedies include exercising the Pledge Agreement entered into by 

GLAS and Byju’s Alpha’s affiliates.34 One thousand shares of common stock, accounting

for 100% of Byju’s Alpha’s equity, was pledged as collateral under the Credit Agreement.35 

If a “trigger event” occurs, GLAS is entitled to take control of Byju’s Alpha’s equity.36 The 

30 A180–A183 (Credit Agreement § 8.1 “Events of Default”).

31 Bench Ruling at 8:1–9; A180 (Credit Agreement § 8.1(e)).

32 Bench Ruling at 8:10–13; B015 (Security Agreement § 14.1–2, dated Nov. 24, 2021) [hereinafter 

“Security Agreement”].

33 Bench Ruling 8:13–19; A183 (Credit Agreement § 8.1(p)).

34 Bench Ruling at 8:20–22; see also B038–B068 (Pledge Agreement, dated Nov. 24, 2021) 

[hereinafter “Pledge Agreement”]. 

35 Bench Ruling at 8:21–24; B064 (Pledge Agreement at E-3). 

36 Bench Ruling at 9:1–2; A148–A150 (Credit Agreement § 5.1); B050–B052 (Pledge Agreement 

§ 7.1).
9

service of a default notice by GLAS to Byju’s Alpha constitutes a “trigger event” under the 

Pledge Agreement.37 In addition, a “trigger event” grants GLAS a power of attorney under 

Security Agreement Section 19.1.38 This allows GLAS “to exercise any of the rights 

conferred on [GLAS] in relation to the Collateral Assets or under any Loan Document or 

under any law.”39 

For instance, Section 5.1 of the Credit Agreement requires T&L to provide both 

unaudited quarterly financial statements and audited financial statements at specific 

intervals.

40

 Failing to deliver these statements constitutes an “event of default” if the failure 

would “continue unremedied for a period of 45 days.” 41 However, the failure may be cured 

at any time prior to the delivery of a default notice.42 When an event of default occurs, the 

Required Lenders may request the delivery of a default notice. Upon GLAS’s delivery of 

the notice, the outstanding loan balance becomes immediately due and payable.43

E. Attempted Approval and First Limited Waiver

At the time of executing the Credit Agreement on November 24, 2021, the RBI had 

not approved either party to serve as a guarantor. Three months earlier, on August 9, 2021, 

37 Bench Ruling at 9:2–4; B006 (Security Agreement § 1.1 “Trigger Event”). To be a “trigger 

event[,]” the service of a notice to Byju’s Alpha by GLAS would have to be made “in accordance 

with Section 8.1 . . . of the Credit Agreement during the continuance of an Event of Default.” Id.

38 B017–B018 (Security Agreement § 19.1).

39 Id.; Bench Ruling at 9:5–10. Specifically, under Section 19, GLAS has power of attorney over 

Byju’s Alpha’s corporate parent Byju’s Pte. Ltd. See B024 (Security Agreement at 22).

40 Bench Ruling at 9:13–15; A148–A150 (Credit Agreement § 5.1).

41 Bench Ruling at 9:16–20; A180 (Credit Agreement § 8.1(e)).

42 Bench Ruling at 9:16–20.

43 Bench Ruling at 9:21–10:2.
10

the RBI posted for feedback two proposed drafts that amended the Former ODI Regulations

(the “Proposed ODI Regulations”).44 The Borrowing Exception was absent from the 

Proposed ODI Regulations.45

On February 11, 2022, DBS Bank, an authorized dealer on behalf of T&L, drafted 

an application seeking the RBI’s approval for T&L and Whitehat to serve as guarantors.46 

While waiting for approval, on March 16, 2022, T&L failed to provide its third-quarter 

financial statements to Lenders pursuant to Section 5.1 of the Credit Agreement.47 On 

March 29, 2022, T&L received approval from the RBI to serve as a guarantor, while 

Whitehat did not.48 In response, the parties modified the contract around Whitehat’s lack 

of approval. That same day, T&L circulated to Lenders, via GLAS, a proposed waiver (the 

“First Limited Waiver”).49 The Lenders agreed to the waiver and executed it on April 5, 

2022.50

44 A1369–70 (Expert Declaration of Mr. Atul Pandey Pursuant to 10 Del. C. 5356 ¶¶ 18–19 n.8–9, 

dated July 19, 2023).

45 Bench Ruling at 10:9–12; Answering Br. at 12.

46 A285–A301 (Draft letter from Byju’s Alpha to DBS Bank with an Attached Application to RBI 

for Overseas Guarantee of Byju’s Alpha by T&L and Whitehat, dated Feb. 11, 2022).

47 Bench Ruling at 10:16–17; A148–A150 (Credit Agreement § 5.1); A598 (Verified Complaint ¶ 

54). 

48 A325–A326 (RBI approval for T&L to Issue an Overseas Guarantee of $1.33B on behalf of 

Byju’s Alpha, dated Mar. 29, 2022); A327–A329 (Memo to Bright Credit Lender Group from 

GLAS Informing Lenders that Despite Byju’s Alpha Efforts, they have not Obtained RBI 

Approval, dated Mar. 29, 2022).

49 See A330–A336 (Draft of First Limited Waiver of Credit Agreement, dated Mar. 29, 2022). 

50 Bench Ruling at 10:23–24; A356–A360 (First Limited Waiver, dated Apr. 5, 2022) [hereinafter 

“First Limited Waiver”].
11

The First Limited Waiver delayed the date for Whitehat to accede to the Credit 

Agreement as a guarantor to “October 8, 2022 and such later date as is agreed in writing 

by the [Required Lenders] . . . .”51 Although Whitehat failed to accede to the Credit 

Agreement, the First Limited Waiver acknowledged that T&L had “used commercially 

reasonable efforts to obtain such RBI Approval on or prior to April 1, 2022,” and had 

exerted “significant efforts (including but not limited to commercially reasonable efforts) 

. . . to obtain the RBI’s approval on or prior to April 1, 2022 to permit Whitehat India to 

guarantee the Covered Obligations[.]”

52

 

F. The Second, Third, and Seventh Amendments

The First Limited Waiver was not the end of the changes to the Credit Agreement. 

Before the new deadline of October 8, 2022, the RBI adopted new ODI regulations on 

August 22, 2022 that discontinued the Borrowing Exception (the “New ODI 

Regulations”).53 During this time, T&L failed, once again, to provide the required financial 

statements pursuant to Section 5.1. This included failing to provide the financial statements 

for its first fiscal quarter on August 14, 2022.54 As of October 8, Whitehat still had not 

become a guarantor.55 In response, on October 12, 2022, the parties executed the second 

51 A356 (First Limited Waiver at 1); Bench Ruling at 10:23–11:4. 

52 A356 (First Limited Waiver at 1).

53 Bench Ruling at 11:5–8; A1317–A1318 (Andhyarujina Declaration ¶ 2 (xvii–xviii)).

54 Bench Ruling at 11:9–11; A598–99 (Compl. ¶ 55–56). 

55 Bench Ruling at 11:14–16; A599 (Compl. ¶ 59).
12

amendment to the Credit Agreement (the “Second Amendment”).

56

 The date for Whitehat 

to accede to the Credit Agreement would be moved to November 24, 2022. The Second 

Amendment to the Credit Agreement amended Section 1.1 to include the following 

definition of “Specified Defaults”:

57

“Specified Defaults” means any or all of the following: 

(a) the failure to deliver to [GLAS], as required under Section 5.1(a), the 

audited financials and other information for the fiscal year of the Parent 

Guarantor ended March 31, 2022.

(b) the failure to deliver to [GLAS], as required under Section 5.1(b), the 

full and complete unaudited financials and other information (including 

the comparative figures for the relevant corresponding fiscal quarter in 

the relevant previous fiscal year) for each of the fiscal quarters of the 

Parent Guarantor ended December 31, 2021, and June 30, 2022; and/or

(c) the failure of Whitehat India to accede to this Agreement and the 

Onshore Guarantee Deed as a Guarantor, as required under Section 

5.9(c), and to otherwise comply with the other requirements under 

Section 5.9(c).58 

The Second Amendment also amended Section 8.1(e) by providing that the Specified 

Defaults would have a 45-day cure period, expiring November 24, 2022, at which point 

any uncured Specified Default would mature into an Event of Default permitting GLAS to 

enforce remedies.59 

56 Bench Ruling at 11:17–18; B069–B119 (Amendment 2 to Credit Agreement, dated Oct. 12, 

2022) [hereinafter “Second Amendment”].

57 B069–B070 (Second Amendment).

58 Id.

59 Bench Ruling at 12:8–11; B070 (Second Amendment). 
13

The first anniversary of the Credit Agreement, November 24, 2022, arrived and the 

Specified Defaults had not been cured.60 This led to the creation of the third amendment 

(the “Third Amendment”) in which T&L, along with the rest of the Guarantors and the 

Required Lenders, agreed not to deliver the Specified Notice of Acceleration before 

December 2, 2022.61 However, the Third Amendment acknowledged that: 

[T]he Cure Period for each of the Specified Defaults referred to in the 

Amendment No. 2 will expire or has expired on November 24, 2022, without 

any of the Specified Defaults being cured by the Loan Parties, and (ii) the 

Required Lenders will be or are therefore entitled to, on and from November 

25, 2022, request [GLAS] to deliver to the Loan Parties the Specified Notice 

of Default and Acceleration.62

Following more amendments, the Credit Agreement was amended for the seventh time on 

January 6, 2023 (the “Seventh Amendment”).

63

 The amendment acknowledged that the 

Cure Period had expired on November 24, 2022. 64 The only way to cure now was through

a waiver by the Required Lenders. However, the Lenders agreed to delay GLAS’s delivery 

of a default notice until at least February 10, 2023.65 Three weeks later, on March 3, 2023, 

60 A604–A605 (Compl. ¶ 75).

61 B120–B145 (Third Amendment to Credit Agreement, dated Nov. 24, 2022) [hereinafter “Third 

Amendment”].

62 Id.; see also Bench Ruling at 12:12–22. 

63 Bench Ruling at 12:23–24; B146–B168 (Amendment 7 to Credit Agreement, dated Jan. 6, 2023) 

[hereinafter “Seventh Amendment”].

64 B151 (Seventh Amendment § 3(a)(i)–(ii)).

65 Bench Ruling at 13:3–5; B148 (Seventh Amendment “Forbearance Period”); B156 (Seventh 

Amendment “Forebearance”).
14

the Required Lenders requested that GLAS deliver to T&L a default notice.66 That same 

day on March 3, 2023, GLAS delivered the notice to T&L. 

G. GLAS and Pohl’s Actions After the Default Notice

After the notice had been delivered, GLAS took a series of actions on behalf of the 

Lenders with the goal of obtaining control over Byju’s Alpha. GLAS started by exercising 

its rights under the Pledge Agreement and the Security Agreement to take control of Byju’s 

Alpha’s outstanding common stock. GLAS transferred 1,000 common shares of Byju’s 

Alpha – representing 100% of Byju’s Alpha’s equity – to GLAS’s name. In addition, GLAS 

executed “an Irrevocable Proxy memorializing its power to serve as [Byju’s Alpha’s parent 

company’s] ‘attorney-in-fact’ and voted the pledged shares on [Byju’s Alpha’s parent 

company’s behalf] . . . .”67 

After GLAS believed that it had secured control over Byju’s Alpha, GLAS and Pohl 

executed written consents to secure Pohl’s position as sole director and officer of Byju’s 

Alpha. GLAS, in its capacity as sole stockholder, acted by written consent to amend the 

company’s bylaws to grant its stockholders the power to fix the size of the company’s board 

of directors.68 Then, GLAS in its capacity as sole stockholder, acted by written consent to 

give the company’s stockholders the power to fill board vacancies by written consent. 

GLAS again, as sole stockholder, acted by written consent to remove Ravindran as Byju’s 

66 Bench Ruling at 13:6–9; B169–B196 (Credit and Guaranty Agreement, dated as of Nov. 24, 

2021 (as amended from time to time) Direction to Deliver Notice of Events of Default and 

Acceleration; and Reservation of Rights, dated as of Mar. 3, 2023).

67 A580 (Compl. ¶ 12). The parent corporation being referred to is Byju’s Pte.’s. 

68 Bench Ruling at 13:13–16. 
15

Alpha’s sole director. It also acted by written consent to appoint Pohl to fill the board 

vacancy. On March 3, after GLAS took the foregoing actions, Pohl acted by written 

consent, as Byju’s Alpha’s sole director, to remove all of the company’s officers.69 Two 

months later, on May 3, 2023, GLAS and Pohl filed a complaint in the Court of Chancery, 

pursuant to Section 225, seeking a declaration that their actions taken by written consent 

were valid.

H. Proceedings in the Court of Chancery

1. Pre-trial Motions and Proceedings

GLAS and Pohl filed a motion for expedited proceedings and for entry of a status 

quo order. After a telephonic hearing, the Court of Chancery, on May 18, 2023, granted 

the motion for expedited proceedings and a status quo order.70 The status quo order 

provided that Pohl would continue to serve as sole officer and director of the Company.71 

On May 30, 2023, Appellants filed their Answer to the Verified Complaint.72 The 

following week on June 5, 2023, T&L and Tangible, along with other non-parties, filed a 

complaint in a New York state court against GLAS (the “New York Action”).

73

 They 

69 Id. at 13:17–24, 14:1–7. 

70 A1141–A1195 (Transcript of Telephonic oral Argument and Rulings of the Court on Plaintiffs’ 

Motion for Expedition and Motion for Status Quo Order, dated May 18, 2023) [hereinafter “Status 

Quo Order”]. 

71 A1186 (Status Quo Order at 46). 

72 See A1196–A1263 (Defendants’ Answer to Verified Complaint Pursuant to 8 Del. C. § 225, 

dated May 30, 2023).

73 See A1271–A1310 (Complaint filed in the New York Action, dated June 5, 2023) [hereinafter 

N.Y. Action].
16

sought a declaratory judgment that there was no event of default.74 They also alleged

damages related to various breaches and interference with business relations.

2. Findings on Forum and Standing

The Court of Chancery held a trial on August 4, 2023 and delivered a thoughtful 

Bench Ruling in favor of GLAS and Pohl on November 2, 2023. Pohl sought to validate 

six actions taken by himself and GLAS.75 However, acknowledging Section 225’s 

summary nature, the trial court deemed five of the six within the scope of Section 225 but 

deemed GLAS’s written consent amending Byju’s Alpha’s bylaws to be beyond the scope 

of the proceeding. The trial court first held that Appellants’ pre-trial brief did not 

adequately address the issue of whether non-signatory Pohl was bound by the forum 

selection clause of the Credit Agreement, and that the issue, therefore, had been waived. 

3. Findings on the Whitehat Guarantee

The Court of Chancery considered the substantive challenges involving the Credit 

Agreement next.

a. The Plain Language Interpretation of the Covenants

The Credit Agreement contains a New York choice-of-law provision.76 In keeping 

with this provision, the Vice Chancellor cited New York case law in interpreting the 

74 A1275 (N.Y. Action ¶ 8).

75 Bench Ruling at 19:1–10. See also Genger v. TR Inv’rs, LLC, 26 A.3d 180, 199 (Del. 2011) (“A 

Section 225 proceeding is summary in character, and its scope is limited to determining those 

issues that pertain to the validity of actions to elect or remove a director or officer.”).

76 Id. at 20:19–21; A207 (Credit Agreement § 10.9(a)).
17

agreement.77 The case law cited by the Vice Chancellor favored an interpretation of a 

contract that “does not render any part of the agreement superfluous or meaningless.”78 

The court analyzed Article V of the Credit Agreement and focused on Section 5.9(c)’s plain 

language. It concluded that Article V contained affirmative covenants that bind the loan 

parties. To illustrate, Article V, entitled “Affirmative Covenants,” and Section 5.9, 

together, state in relevant part:

Until the Term Commitments have expired or been terminated and all 

Obligations . . . shall have been paid in full in cash, each Loan Party 

covenants and agrees with the lenders that:

. . . .

On and from the earlier of (i) April 1, 2022 and (ii) within five Business Days 

of the date RBI Approval is received, Whitehat . . . shall accede to this 

Agreement and the Onshore Guarantee Deed as a Guarantor[.]

79

The Vice Chancellor interpreted Section 5.9(c) to require Whitehat to accede as a guarantor 

on or before April 1, 2022.80 Further, the April 1 deadline was “a hard deadline” that was 

not conditioned on the receipt of RBI approval.81

The trial court agreed with Appellants that Section 5.9(c) is different from other 

covenants in the Credit Agreement because breach of that covenant is the result of a 

77 Bench Ruling at 20:21–21:9.

78 Bench ruling at 20:21–21:4 (quoting Greenfield v. Philles Records, Inc., 780 N.E.2d 166, 170 

(N.Y. 2002)); id. at 21:4–21:9 (quoting Brad H. v. City of New York, 951 N.E.2d 743, 746 (N.Y. 

2011)).

79 A153 (Credit Agreement § 5.9(c)); Bench Ruling at 22:1–8.

80 Bench Ruling at 21:13–22:11; A153 (Credit Agreement § 5.9(c)). The Credit Agreement 

includes a New York choice of law provision. Accordingly, the Court of Chancery interpreted it 

under New York law. Bench Ruling at 20:19–21. 

81 Bench Ruling at 22:12–15. 
18

nonparty’s action or inaction.

82

 The trial court relied on the notion that a contract that is 

conditioned on events outside of one’s control does not affect its validity or the 

consequences of its breach. The Vice Chancellor found support for this position in Justice 

Holmes’ The Common Law,

83 and Justice Souter’s opinion in United States v. Winstar 

Corp.

84

 The Vice Chancellor relied upon the following reference by Justice Souter in 

Winstar to an illustration of this point by Justice Holmes:

We read th[e] promise [at issue] as the law of contracts has always treated 

promises to provide something beyond the promisor's absolute control, that 

is, as a promise to insure the promisee against loss arising from the promised 

condition's nonoccurrence. Holmes’s example is famous: ‘[i]n the case of a 

binding promise that it shall rain tomorrow, the immediate legal effect of 

what the promisor does is, that he takes the risk of the event, within certain 

defined limits, as between himself and the promissee.’ Holmes, The 

Common Law (1881), in 3 The Collected of Justice Holmes 268 (S. Novick 

ed. 1995). Contracts like this are especially appropriate in the world of 

regulated industries, where the risk that legal change will prevent the 

bargained-for performance is always lurking in the shadows.85

The Vice Chancellor found further support in Court of Chancery precedent that has applied 

this principle. She cited to the Court of Chancery’s decisions in Symbiont.io, Inc. v. Ipero 

Holdings, LLC,

86 and Alliance Data Systems Corp. v. Blackstone Capital Partners V L.P.87

The court in Symbiont.io, Inc. observed that “‘[a] party can accept contractual 

82 Id. at 22:19–23:3. 

83 Id. at 23:4–24:1 (citing Oliver W. Holmes, Jr., The Common Law (1881), in 3 The Collected 

Works of Justice Holmes 268 (S. Novick ed. 1995)).

84 Id. at 24:2–19 (citing 518 U.S. 839, 868–69 (1996)). 

85 Winstar Corp., 518 U.S. at 868–69.

86 2021 WL 3575709 (Del. Ch. 2021). 

87 963 A.2d 746 (Del. Ch. 2009), aff’d 976 A.2d 170, 2009 WL 1740171 (Del. June 18, 2009) 

(TABLE); see also Bench Ruling at 24:20–25:5. 
19

consequences for events beyond its control, including the actions of entities that are not 

parties to the contract,’ and that ‘[t]he insurance industry exists because of that basic 

proposition.’”88 Even though these cases applied Delaware law, the court found them to 

be persuasive in interpreting the Credit Agreement under the lens of New York law.89 

Next, the Court of Chancery determined that Section 5.17(d) and Section 5.9(c), did 

not conflict with each other but, instead, worked together.90 It interpreted Section 5.17(d) 

to require T&L use reasonable commercial efforts to procure RBI approval on or prior to 

April 1, 2022.91 The court held that Section 5.17(d) made clear that failure to do so would 

not require mandatory prepayment of the loan under the Credit Agreement.92 By contrast, 

the court interpreted Section 5.9(c) to govern “only on April 1, or after RBI approval is 

obtained.”93 Moreover, the efforts clause “does not change, weaken, or nullify the fact that 

the loan parties covenanted that Whitehat would, in fact, accede and accept the 

consequences if it did not.”94 The Vice Chancellor turned to two sources to support this 

conclusion. The first was a treatise – New York Contract Law – which the Vice Chancellor 

quoted for the proposition that “[a] best efforts requirement should not be read as negating 

88 Symbiont.io, Inc., 2021 WL 3575709, at *27 (citations omitted).

89 Bench Ruling at 25:5–25:7.

90 Id. at 25:12–14 (“Section 5.17(d) does not undermine my interpretation of Section 5.9(c), but 

rather works in tandem with it.”). 

91 Id. at 25:12–21 (emphasis added).

92 Id.

93 Id. at 25:22–26:1.

94 Id. at 26:2–8.
20

other clauses of the contract but should be reconciled with the other provisions.”

95

 The 

second source was Vestron, Inc. v. National Geographic Society, which states that a “best 

efforts requirement must be reconciled with other clauses in the contract to the extent 

possible, not used as a basis for negating them.”96

The Court of Chancery highlighted other support that required Whitehat to accede

under the Credit Agreement. For example, it pointed to the provision that “Whitehat’s 

failure to accede to the onshore guarantee deal by April 1 will not give rise to a default if 

the guarantee maintenance amount is satisfied absent Whitehat’s guarantee and other 

conditions are met.”97 The court reasoned that in order for the provision to have a purpose 

and not be superfluous, Whitehat’s failure to accede must have created a default under the 

Credit Agreement.98 Because Whitehat had not acceded, the loan parties were in breach of

an Article V covenant, which could then mature into an event of default under Section 

8.1(e).99

b. Amendments and “Specified Default”

The court next determined that the Second, Third and Seventh Amendments

reinforced that Whitehat’s failure to obtain RBI approval was an event of default.100 First, 

95 Id. at 26:9–14 (quoting NEW YORK CONTRACT LAW–NEW YORK PRACTICE SERIES § 28:15 (2d 

ed.)).

96 Id. at 26:15–21 (quoting Vestron, Inc. v. Nat’l Geographic Soc’y, 750 F. Supp. 586, 593 

(S.D.N.Y. 1990)).

97 Id. at 27:1–7 (emphasis in original) (referring to Section 5.17(b)).

98 Id. at 27:5–7.

99 Id. at 27:8–18. 

100 Id. at 27:19–21; id. at 28:20–22; id. at 12:14–22.
21

the Second Amendment, executed on October 12, 2022, added Specified Defaults to 

Section 8.1(e).101 That amendment gave T&L until November 24 to cure the Specified

Defaults. Thus, the Second Amendment ensured that a failure to obtain the Whitehat 

guarantee would be an event of default.

102

 

The Third Amendment’s recitals acknowledged that T&L’s failure to cure the 

Specified Defaults entitled the Required Lenders, on and from November 25, 2022, to 

request GLAS to deliver to the Loan Parties a default notice. The recitals also reflected the 

Required Lenders’ agreement to refrain from requesting that GLAS deliver a default notice 

before December 2, 2022, notwithstanding the expiration of the cure period on November 

24, 2022.

103

 

Third, the Seventh Amendment, executed on January 6, 2023, likewise made clear 

that Whitehat’s failure to accede was an event of default. It provided that the Specified 

Defaults could no longer be cured unless the Required Lenders consented. It stated in 

relevant part: 

It is hereby acknowledged and agreed by the parties hereto that:

(i) the Cure Period for any Specified Defaults referred to in the Amendment 

No. 2 expired on November 24, 2022, without any of the Specified Defaults

being cured by the Loan Parties; and

(ii) none of the Specified Defaults as referred to in the Amendment No. 2 

can be cured or remedied (or deemed to be cured or remedied) following the 

101 B069–070 (Second Amendment § 1(a)(c), (b)(c)).

102 Id.; Bench Ruling at 27:19–28:19 (“What’s more, the second amendment to the credit 

agreement ensured the failure to obtain the Whitehat guarantee was an event of default.”).

103 Bench Ruling at 12:14–22. 
22

date of this Agreement other than by waiver by the Required Lenders in 

accordance with Section 10.2 of the Credit Agreement.104 

The Vice Chancellor concluded that the Seventh Amendment was “a contractual stipulation 

that Whitehat’s failure as a guarantor by November 24 to accede was an event of 

default.”

105

 The Vice Chancellor also held that the amendment’s lack of curability and the 

reassertion of the right to send a default notice to Byju’s Alpha supported her conclusion.106 

Thus, the Vice Chancellor determined that Appellants’ interpretation of the Credit 

Agreement covenants as exclusively requiring T&L use commercially reasonable efforts 

to procure RBI approval, was fatally flawed by “the credit agreement’s plain language and

its subsequent amendments.”107 The trial court determined that GLAS’s and Pohl’s actions 

were valid, unless Appellants could successfully raise any potential defenses.108 

4. Findings on the Defenses

a. Impossibility

The parties did not dispute that the New ODI Regulations had removed the 

Borrowing Exception which, in turn, made it impossible for Whitehat to obtain RBI 

approval. However, the parties disputed whether the risk of the ODI regulations changing 

104 B151 (Seventh Amendment § 3(a)(i)–(ii)); Bench Ruling at 28:20–29:10. The Required 

Lenders agreed that they would not request that GLAS deliver a default notice before February 10, 

2023.

105 Id. at 29:11-13.

106 Id. at 29:11–20 (“[T]he amendment’s discussion of the inability to cure or remedy the specified 

defaults necessarily requires that the specified defaults were events of default that could be 

cured.”).

107 Id. at 29:21–30:4 (emphasis added).

108 Id. at 30:5–7.
23

was foreseeable.109 The Vice Chancellor held that “[u]nder New York law, a party may be 

relieved of its obligation to perform where performance becomes objectively 

impossible.”110 The Vice Chancellor also noted that this defense is tightly constrained.111 

The court cited the standard set forth by the New York Court of Appeals in Kel Kim Corp.

v. Century Markets, Inc.,

112 stating that “[i]mpossibility will relieve a party of its 

obligations only where, at the time of contracting, the risk at issue was both unforeseeable 

and unable to be guarded against in the contract.”113 The Vice Chancellor articulated three 

principles of contract law that she would apply in her analysis. First, the burden is on the 

defendant to demonstrate that performance is impossible.114 Second, a change in law can 

render performance impossible.115 Third, changes in law are generally foreseeable.116

109 Id. at 31:9–16. The court determined that because Pohl did not argue against the New ODI 

Regulations making performance impossible, he thereby conceded the issue. Id. 31:9–12.

110 Id. at 30:12-14.

111 Id. at 30:15–21.

112 519 N.E.2d 295 (N.Y. 1987); see also Gen. Elec. Co. v. Metals Res. Grp. Ltd., 741 N.Y.S.2d 

218 (N.Y. App. Div. 2002); Bench Ruling at 30:12–31:3.

113 Bench Ruling at 30:22–31:3 (citing Kel Kim Corp., 519 N.E.2d 295, 296 (N.Y. 1987) (stating 

also that “[i]mpossibility excuses a party’s performance only when the destruction of the subject 

matter of the contract or the means of performance makes performance objectively impossible.”).

114 Bench Ruling at 31:3–6 (citing Red Tree Invs., LLC v. Petróleos de Venezuela, S.A., 2021 WL 

6092462 (S.D.N.Y., 2021), aff'd, 82 F.4th 161 (2d Cir. 2023)).

115 Id. at 31:6–7.

116 Id. at 31:7–8 (citing WILLISTON ON CONTRACTS § 77:54 (4th ed.)). The precise language used 

by Williston on Contracts is “[r]ealistically, the fact that there will be changes in law, 

administrative rules, and regulations is generally foreseeable.” WILLISTON ON CONTRACTS § 77:54 

(4th ed.).
24

To determine foreseeability, the court examined the chronology of events, beginning 

with August 22, 2021 – months before the parties signed the Credit Agreement – when the 

Proposed ODI Regulations were posted for public comment.117 The Proposed ODI 

Regulations were adopted a year later on August 22, 2022. The Borrowing Exception,

which Whitehat relied upon, was absent in both the proposed and the subsequently enacted 

ODI regulations. Pohl’s expert witness stated that it was reasonably foreseeable that the 

New ODI Regulations would not contain the Borrowing Exception because of its absence 

in the Proposed ODI Regulations.118 By contrast, the court determined that Appellants’ 

expert witness’s opinion only supported the notion that the change was not explicitly noted 

in the Proposed ODI Regulations and that this lack of a specific mention did not render it 

unforeseeable.

119

In determining that the change in regulations was foreseeable, the Vice Chancellor 

relied upon Red Tree Investments, LLC v. Petróleos de Venezuela, S.A.,

120 a decision 

applying a New York law. There, the United States District Court for the Southern District 

of New York considered an argument that an executive order imposing sanctions on certain 

Venezuelan-related entities, issued two weeks before the contracting parties entered into 

certain note and credit agreements, made a future expansion of the order foreseeable. Later, 

after the order was expanded to include state-owned businesses, defendants (who were 

117 Bench Ruling at 32:8–14.

118 Bench Ruling at 32:21–33:1; A1383–84 (Expert Declaration of Mr. Atul Pandey Pursuant to 

10 Del. C. 5356 ¶ 47, dated July 19, 2023).

119 Bench Ruling at 32:21–33:12 (discussing A1328–A1329 (Andhyarujina Declaration ¶ 17)).

120 Bench Ruling at 33:14–34:12 (citing Red Tree Invs., LLC, 2021 WL 6092462).
25

instrumentalities of the Venezuelan government) argued that the change in the law rendered 

their performance impossible.

The federal court explained that under New York law, “‘[i]mpossibility excuses a 

party’s performance only when the destruction of the subject matter of the contract or the 

means of performance makes performance objectively impossible.’”121 Further, the 

impossibility must be the product of “‘an unanticipated event that could not have been 

foreseen or guarded against in the contract[.]’”122 It observed that New York’s highest state 

court, the Court of Appeals, “has cautioned that the impossibility defense should be 

‘applied narrowly, due in part to judicial recognition that the purpose of contract law is to 

allocate the risks that might affect performance and that performance should be excused 

only in extreme circumstances.’”123 The federal court held that because the expansion of 

the pre-existing Venezuelan sanctions to include a state-owned business and the riskadverse reaction of some members of the banking community could have been foreseen 

and guarded against in the contract, defendants could not meet their burden of proof on the 

affirmative defense of impossibility. 

121 2021 WL 6092462, at *4 (quoting Kel Kim Corp. v. Cent. Mkts, Inc., 519 N.E.2d 295, 296 (N.Y. 

1987)). 

122 Id. (quoting Kel Kim Corp., 519 N.E.2d at 296). 

123 Id. (quoting Kel Kim Corp., 519 N.E.2d at 296). The court also held that defendants had failed 

to provide sufficient evidence that payment was impossible. In affirming, the United States Court 

of Appeals for the Second Circuit upheld this aspect of the holding and concluded that it need not 

reach the alternative holding relating to the foreseeability of the sanctions. See Red Tree 

Investments, LLC v. Petróleos de Venezuela, S.A., 82 F.4th 161, 170 (2d Cir. 2023). 
26

Guided by this precedent, the Court of Chancery held that Appellants had failed to 

establish that the change in Indian regulations was unable to be guarded against.124 In the

court’s view, the parties had expressly allocated the risk that RBI might not approve 

Whitehat by imposing the April 1 deadline. The parties provided that a default would occur 

if they failed to get RBI approval. The court weighed the fact that even after the New ODI 

Regulations were in place (i.e., when the parties were aware that it would be impossible 

for Whitehat to receive approval from the RBI), the parties amended the contract but still 

did not move the risk away from the “loan parties.”125 Accordingly, the Vice Chancellor 

held that Appellants had failed to carry their burden in establishing an impossibility 

defense.

b. Unclean Hands

In response to Appellants’ unclean hands defense, the Court of Chancery questioned 

whether unclean hands, an equitable defense, was available in a Section 225 action as a 

defense to a legal claim. Regardless, the court reviewed the merits of the defense, 

ultimately rejecting it. First, the court determined that the case was not an “end-run” 

around New York’s jurisdiction, as the court saw no evidence that the action under the 

Delaware General Corporation Law was filed “for any nefarious purpose.”

126

 Second, the 

willingness of the Lenders to patiently wait and forbear on the loans numerous times, even 

after they had become entitled to sending a default notice, cut against a finding of unclean 

124 Bench Ruling at 34:13–21; see also id. at 35:10–14.

125 Id. at 34:22–35:9.

126 Id. at 36:20–37:3.
27

hands. Third, the court rejected Appellants’ argument that GLAS threatened to violate an

NDA and release Byju’s Alpha’s confidential information. Specifically, the court 

determined that the evidence offered by Appellants, consisting of two emails and 

testimony, was not adequate to support Appellants’ claims.127 Fourth, the court held that

Pohl did not violate the status quo order by entering into a director agreement with Byju’s 

Alpha which provided a monthly salary of $75,000 for his services as sole director and 

officer.128 This was because the director agreement was executed before entry of the status 

quo order. Therefore, Pohl, by accepting those payments, operated consistently with the

status quo order.

129

 

Accordingly, the court held that Pohl’s and GLAS’s actions were valid although it 

held the issue of GLAS’s written consent determining the size of Byju’s Alpha’s board was 

outside the scope of the action. The Vice Chancellor then entered a final order and 

judgment on November 13, 2023, granting relief for Appellees.

I. Contentions on Appeal

Following the Vice Chancellor’s bench ruling, Appellants filed an appeal to this 

Court. They raise several contentions on appeal. First, they argue that the trial court erred 

by failing to address Appellants’ arguments that the action below should have been

dismissed in favor of the pending New York Action – aligning with the forum designated 

127 Id. at 38:1–39:5.

128 Id. at 39:11–18. The court also determined that Pohl’s compensation was not excessive. Id.

129 Id. 40:2–41:3. The Vice Chancellor held that an affirmative defense of economic duress was

waived. Id. at 39:24–40:1.
28

by the Credit Agreement’s forum selection clause. They contend that the court erred in 

holding that Appellants waived an argument that Pohl was subject to that clause. Second, 

Appellants contend that the trial court erred in holding that the inability of T&L to procure 

RBI Approval for Whitehat’s additional guarantee, notwithstanding its reasonable 

commercial efforts to procure such approval, constituted a breach of the Credit Agreement. 

Third, and finally, they maintain that the trial court erred in holding that the inability of 

T&L to procure RBI approval for Whitehat’s additional guarantee was not excused on the 

grounds of legal impossibility. 

II. STANDARD OF REVIEW

“This Court reviews a trial court's finding of waiver under the standard of plain 

error.”130 “‘In order for this Court to find plain error, the error complained of must be so 

clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial 

process.’”131 

This Court “review[s] questions of contract interpretation de novo.”132 “This Court 

reviews the Court of Chancery’s legal conclusions de novo but defers to the Court of 

Chancery’s factual findings supported by the record.”133

130 N. Am. Leasing, Inc. v. NASDA Holdings, LLC, 276 A.3d 463, 470 (Del. 2022) (citing Med. Ctr. 

of Del., Inc. v. Lougheed, 661 A.2d 1055, 1060 (Del. 1995)). 

131 Id. (quoting Med. Ctr. of Del., Inc., 661 A.2d at 1060). 

132 Salamone v. Gorman, 106 A.3d 354, 367 (Del. 2014). 

133 Coster v. UIP Cos., Inc., 300 A.3d 656, 663 (Del. 2023) (citing Backer v. Palisades Growth 

Cap. II, L.P., 246 A.3d 81, 94 (Del. 2021)). 
29

III. ANALYSIS

A. Whether Non-Signatory Pohl Was Bound by the Forum Selection Clause Was Not 

Fairly Presented in the Proceedings Below

We first address whether the Court of Chancery correctly held that Appellants

waived their argument that the Credit Agreement’s forum selection clause bound Pohl – a 

non-signatory of the Credit Agreement. Appellants contend that the trial court erred by not 

dismissing this action in favor of the New York action for two reasons: First, Appellants’ 

forum selection clause arguments were fairly presented in the proceedings below; and 

second, the trial court failed to address any of Appellants’ forum selection clause 

arguments in the Bench Ruling. The trial court summarily dispensed with this issue in the 

Bench Ruling as follows: 

This Section 225 action has two plaintiffs: Pohl, in his capacity as a 

purported director and officer of BYJU’s Alpha, and GLAS as BYJU’s 

Alpha’s sole stockholder. Defendants challenge GLAS’s ability to bring this 

claim in this Court under the credit agreement’s forum selection clause.

But I need not resolve the forum selection issue pertaining to GLAS. 

Defendants have made no argument that Pohl is bound by the forum selection 

clause. He is a non-signatory, and defendants’ pretrial brief did not address 

whether Pohl is bound by the credit agreement’s forum selection clause as 

such. 

Any such argument is therefore waived, and I conclude the forum selection 

clause does not bind Pohl. And as I will explain, Pohl has standing to bring 

this action. If Pohl can bring this action, then this Court’s judgment in rem 

will establish the status of BYJU’s Alpha’s director and officer seats to the 

exact same extent as if GLAS had brought it. I will consider the claim as 

presented by Pohl.134 

134 Bench Ruling at 15:19–16:15 (emphasis added). 
30

Thus, according to the trial court, Appellants’ failure to specifically argue that Pohl was 

bound by the forum selection clause was dispositive. 

“Under Supreme Court Rule 8 and general appellate practice, this Court may not 

consider questions on appeal unless they were first fairly presented to the trial court for 

consideration.”135 A “very narrow” exception to Rule 8 allows this Court to consider a 

“question for the first time on appeal ‘when the interests of justice so require.’”136 

However, this exception is “extremely limited” and invokes the plain error standard of 

review.137 Under that standard, if the error in question is “‘so clearly prejudicial to 

substantial rights as to jeopardize the fairness and integrity of the trial process,’ then we 

may consider that appellant’s argument even though he did not fairly present the argument 

to the trial court for decision.”138 Here, the circumstances do not meet the high threshold 

of the Rule 8 exception under the plain error standard of review. Accordingly, we affirm 

the trial court’s finding of waiver. 

At oral argument, Appellants’ counsel stated that the “trial record” was the best 

record evidence that this issue was not waived.139 A closer review of the trial record, 

135 Russell v. State, 5 A.3d 622, 627 (Del. 2010) (citing Del. Supr. Ct. R. 8; Wainwright v. State, 

504 A.2d 1096, 1100 (Del. 1986)). 

136 Id. (quoting Del. Supr. Ct. R. 8). 

137 Id. (citing Wainwright, 504 A.2d at 1100). 

138 Id. (quoting Wainwright, 504 A.2d at 1100); see also Med. Ctr. of Del., Inc. v. Lougheed, 661 

A.2d 1055, 1060 (Del. 1995).

139 In asserting that the trial record was the best record evidence that this issue was not waived, 

Appellants’ counsel conceded at oral argument that the briefing was “less strong” evidence: 
31

however, does not support Appellants’ contention because at no point in the proceedings 

below did Appellants’ counsel explicitly argue that Pohl was bound by the forum selection 

clause because he was a non-signatory. At the trial, Appellees’ counsel and the trial court 

engaged in a lengthy discussion concerning whether Pohl brought this suit in his individual 

capacity or in his capacity as the director of Byju’s Alpha.140 In response to this discussion, 

The Court: What would you consider is your best record evidence that this was 

not waived. I know you have different things in here, but what do you consider 

your strongest evidence that it was it not [waived]? 

Appellants’ Counsel: I think the trial record. There is probably, I want to estimate, 

10 to 12, maybe 8 to 12, pages of back and forth from the court. I think the test is 

really was it fairly presented? I think the proof is in the pudding [because] the other 

side addressed the issue and so it was not a surprise to them. It was before the court 

knew the issue and the court had a discourse about the issue, but I would say the 

trial record admittedly is the strongest. The briefing is less strong. 

Oral Argument, at 7:58–8:37, https://vimeo.com/982096660. 

140 Section 225 Trial Tr. 64:9-72:14. The following exchange, which was highlighted in 

Appellants’ opening brief demonstrates that Defendants, at trial, generally argued that Pohl brought 

this suit not in his individual capacity, but rather in his capacity as the director of Byju’s Alpha. 

Absent from this exchange is any explicit argument addressing whether Pohl was bound by the 

forum selection clause despite being a non-signatory:

Defendants’ Counsel: Mr. Pohl is only here because he claims to be a sole director 

and officer of Byju’s Alpha. He says so in paragraph 1 of the verified complaint. 

His sole basis for acting is based on the validity of the enforcement action, and 

that’s an issue to be determined in New York. He is here as an agent of a party to 

the credit agreement, a party that’s bound by the exclusive jurisdiction clause.

Court of Chancery: Can you address the argument that a 225 and the ability to 

bring a 225 is bestowed on stockholders and directors, it’s not bestowed on the 

company. 

Defendants’ Counsel: Well, it’s bestowed on stockholders and directors, but he’s 

only a director of the company by virtue of him exercising the pledge; otherwise, 

he’s just a private citizen. Either way, he’s there through the mechanics of the credit 

agreement and the forum selection clause, which said all of the parties, each of the 

parties, agree to the exclusive jurisdiction. Also, he’s not really a necessary party 

to this proceeding. They didn’t really need to add him. This could have been 

brought by GLAS alone. And the fact that they added him, I suspect, is so that they 

can make this argument. But he’s really not a necessary party here.
32

Appellants’ attorney stated that he would be “happy be to address [that issue], but I think 

you’re already there, which is exactly right.”141 This cursory comment does not register as 

an argument that is fairly presented to the trial court for consideration as required by Rule 

8.142 

Beyond the trial record, little exists from the briefing or the status quo hearing that 

supports Appellants’ contention that this issue was not waived. Appellants’ brief in 

opposition to Appellees’ motion for a status quo order did not address this specific issue. 

Rather, it focused on the general application of the forum selection clause, not whether 

non-signatory Pohl was expressly bound by it.143 At the subsequent status quo hearing, the 

only mention of Pohl in the context of this argument was by Pohl’s attorney.144 Appellants’ 

attorney, by contrast, merely repeated the general application of the forum selection clause 

arguments that were asserted in the pre-hearing brief and did not specifically address 

whether Pohl was bound by it.145 Turning to Appellants’ answer to the verified complaint, 

their second affirmative defense addressed only whether the forum selection clause 

encompassed the claims in the case, not whether Pohl was bound by it: “[t]he Complaint 

Section 225 Trial Tr. at 90:4–91:5.

141 Id. at 90:1–3. 

142 Del. Supr. Ct. R. 8. 

143 A658–A659 (Defendants’ Answering Brief in Opposition to Plaintiffs’ Motion for Status Quo

and Opening Brief in Support of Motion to Seal the Courtroom, dated May 15, 2023) (“As noted 

above, Section 10.9(c) of the Credit Agreement contains a clear and explicit provision selecting 

New York as the exclusive forum for actions relating to the Credit Agreement.”). 

144 See A1159–A1160 (Status Quo Order at 19–20) (“Also, the forum provision doesn't apply to 

Mr. Pohl, who is not a signatory to the credit agreement.”). 

145 See A1175–A1176 (Status Quo Order at 35–36); see also A1187 (Status Quo Order at 47). 
33

should be dismissed for lack of jurisdiction pursuant to the exclusive New York forum 

selection clause contained in the Credit Agreement.”146 

The joint pre-trial order again emphasized that the forum selection clause governed 

the claims arising from the Credit Agreement, not whether Pohl was specifically bound by 

it: “Plaintiffs commenced this action on May 3, 2023 even though the Credit Agreement 

contains an exclusive New York forum selection clause. New York is the only jurisdiction 

in which the totality of the parties’ dispute concerning these events, as well as their full 

legal consequences, can be determined.”147 Although Appellants point to a footnote in 

their Pre-Trial brief, this footnote is insufficient. It merely states that “Pohl (who has 

brought the instant suit in his putative capacity as ‘sole director’ of Byju’s Alpha) is neither 

an Agent nor a Lender.”

148

 This point does not address the contention that the forum 

provision does not apply because Pohl is a non-signatory. Rather, it appears to be 

addressed to the last sentence of the forum selection clause which allows any “Agent” or 

“Lender” to “bring any action or proceeding relating to this Agreement . . . in the courts of 

any jurisdiction[.]”149

 Appellants’ citation to various examples from the proceedings below where Pohl’s 

counsel suggested that he was not bound by the forum selection provision does not help 

146 A1261 (Defendants’ Answer to Verified Complaint Pursuant to 8 Del. C. § 225, dated May 30, 

2023). 

147 A1532 (Pre-Trial Stipulation at 5) (emphasis added). 

148 A1510 (Defendants’ Pre-Trial Brief dated July 21, 2023 at 38, n.16). 

149 A208; A1510. 
34

them either.

150

 They suggest, by these examples, that Pohl’s counsel had sufficient notice 

of this argument and could not have been surprised. Yet despite Pohl’s counsel raising the

argument, Appellants’ counsel never squarely responded to it. 

Appellants’ argument concerning the lack of post-trial briefing fares little better. 

Although the trial court did not request any post-trial briefing,151 this does not absolve 

Defendants from failing to make this specific argument during trial or in their pre-trial 

briefing. Defendants knew before the trial that there was no post-trial briefing unless

150 See generally A1133 (Plaintiffs’ Reply Brief in Further Support of Motion for Expedited 

Proceedings and for Status Quo Order, dated May 17, 2023) (“[T]his litigation will still move 

forward in Delaware on the merits. This is because neither the current nor former directors and 

officers of BYJU’s Alpha — Pohl and Ravindran, respectively — are parties to the Credit 

Agreement, and accordingly, they are not bound by its venue selection clause.”); A1159 (Status 

Quo Order at 19) (“Also, the forum provision doesn’t apply to Mr. Pohl, who is not a signatory to 

the credit agreement.”); A1458 (Plaintiffs’ Pre-Trial Brief, dated July 21, 2023) (“But the forum 

provision does not require GLAS to sue in New York and additionally is inapplicable to Pohl, who 

is not a party to the Credit Agreement.”); A1461 (Plaintiffs’ Pre-Trial Brief, dated July 21, 2023) 

(“Alternatively, Pohl as the person asserting a claim to office, is neither a party to the Credit 

Agreement nor ‘closely related’ to the parties thereto — and, in particular, was not involved in the 

negotiation of the Credit Agreement. As such, Pohl is not bound by the contract’s forum 

provision.”); A1650–A1657 (Section 225 Trial Tr. at 63–70).

151 See A1270 (Stipulation and Order Governing Case Schedule, dated May 30, 2023) (“There will 

be no post-trial briefing and/or argument, unless requested by the Court after trial has concluded.”). 
35

requested by the court.152 Therefore, they should have adequately raised this issue before 

the trial’s conclusion.153 

Appellants lean heavily on the unfair surprise rationale for waiver rules but neglect 

the other policies behind waiver – namely, judicial economy and the value of finality. Even 

if we assume Appellees were not unfairly surprised by the forum selection issue, 

Appellants’ failure to join the issue prevented the issue from being determined by the trial 

court. Appellees and the trial court took the time, effort, and expense to litigate this case 

through extensive briefing and a trial. We find it difficult to see how judicial economy and 

finality can square with requiring the parties to retry the case, merely because Appellants 

failed to address an issue which they now claim is vital to this case. The narrow exception 

to Rule 8 allows this Court to consider a “question for the first time on appeal ‘when the 

interests of justice so require.’”154 After examining the record, we cannot conclude that 

this threshold has been met. 

152 This fact was highlighted at oral argument: 

The Court: Did the parties know going into trial that there would not be post-trial 

briefing? 

Appellants’ Counsel: I believe we did. I think that was in the pre-trial order that 

the court had added to . . . the “so ordered” line of the pre-trial order. That is correct 

your Honor. 

Oral Argument, at 6:45–7:04, https://vimeo.com/982096660.

153 See, e.g., Biolase, Inc. v. Oracle Partners, L.P., 97 A.3d 1029, 1036 (Del. 2014) (“The parties 

filed pre-trial briefs and the Court of Chancery held both a trial and post-trial argument in this case. 

[Cross-appellant] did not take advantage of any of these opportunities to fairly present an argument 

in support of its request for an award of attorneys’ fees . . . . Thus, the Court of Chancery did not 

abuse its discretion when it entered a final judgment that denied [cross-appellant]’s claim for 

attorneys’ fees.”). 

154 Russell v. State, 5 A.3d 622, 627 (Del. 2010) (quoting Del. Supr. Ct. R. 8). 
36

B. The Amendments Demonstrate That Defendants Breached the Credit Agreement 

The next issue we address is whether the trial court properly concluded that 

Whitehat’s failure to accede as a guarantor constituted a breach of the Credit Agreement, 

thereby allowing the Lenders to seek remedies. Appellants make three main arguments 

concerning this issue. First, Section 5.9(c), by its own language, does not obligate the 

Loan Parties to obtain the accession of Whitehat; second, the trial court misconstrued the 

relationship between Sections 5.9(c) and 5.17 – rendering the latter meaningless; and third

any breach was “trivial” in nature and the enforcement of remedies would be 

“unconscionable.” We need not address these arguments, however, because the Second, 

Third, and Seventh Amendments to the Credit Agreement foreclose Appellants’ other 

substantive arguments.

Read together, the Second, Third, and Seventh Amendments to the Credit 

Agreement make clear that Appellants voluntarily conceded that Whitehat’s failure to 

accede as a guarantor was an explicit breach of the Credit Agreement, thus entitling GLAS 

to enforce its remedies. In the Second Amendment, the parties defined “Specified 

Defaults” to include “the failure of Whitehat India to accede to this Agreement and the 

Onshore Guarantee Deed as a Guarantor, as required under Section 5.9(c), and to otherwise 

comply with the other requirements under Section 5.9(c).”155 In the Third Amendment, 

the parties acknowledged the following: 

It is hereby acknowledged and agreed by the parties hereto that (i) the Cure 

Period for each of the Specified Defaults referred to in the Amendment No. 

2 will expire or has expired on November 24, 2022, without any of the 

155 B070 (Second Amendment § 1(a)(c)). 
37

Specified Defaults being cured by the Loan parties, and (ii) the Required 

Lenders will be or are therefore entitled to, on an from November 25, 2022, 

request the Administrative Agent to deliver to the Loan Parties the Specified 

Notice of Default and Acceleration.156

Thus, the Third Amendment explicitly noted that Whitehat’s failure to accede to the Credit 

Agreement as a guarantor had not been cured. It emphasized further that the Lenders were 

entitled to exercise remedies through a notice of default and acceleration with respect to 

that default. 

Turning to the Seventh Amendment, we agree with the trial court’s conclusion that 

the Seventh Amendment was a “contractual stipulation that Whitehat’s failure to accede as 

a guarantor by November 24 was an event of default.”157 The operative language of the 

Seventh Amendment makes this point clear: 

(a) It is hereby acknowledged and agreed by the parties hereto that: 

(i) the Cure Period for any Specified Defaults referred to in the 

Amendment No. 2 expired on November 24, 2022, without any of the 

Specified Defaults being cured by the Loan Parties; and 

(ii) notwithstanding any actions or otherwise by the Parent Guarantor 

or any other Person following the date of this Agreement (including, 

without limitation, the delivery to the Administrative Agent of any 

relevant financial information or statements the subject of any 

Specified Default), none of the Specified Defaults as referred to in the 

Amendment No. 2 can be cured or remedied (or deemed to be cured 

or remedied) following the date of this Agreement other than by 

waiver by the Required Lenders in accordance with Section 10.2 of 

the Credit Agreement.158

156 B121 (Third Amendment, § 1(a)). 

157 Bench Ruling at 29:11–13. 

158 B151 (Seventh Amendment, § 3 (a)(i) & (ii)). 
38

The Seventh Amendment’s discussion of the inability to cure, other than by waiver by the 

Required Lenders, necessarily suggests that the Specified Defaults were events of default 

that could be cured. We agree with the trial court that the plain language of the Second, 

Third, and Seventh Amendments to the Credit Agreement shows that Whitehat’s failure to 

accede as a guarantor constituted an event of default which entitled GLAS to send a default 

notice and seek remedies. 

Appellants’ arguments to the contrary fall short. Appellants’ main response, 

contained in their reply brief, is that Appellants never conceded that Whitehat’s nonaccession constituted a “material breach” of the Credit Agreement.159

 This argument is a 

stretch.

160

 The amendments explicitly define Whitehat’s failure to accede as a “Specified 

159 See Reply Br. 16–17. 

160 The following exchange from oral argument highlights Appellants’ tenuous claim: 

The Court: Do we even need to go through that analysis in view of the Second, 

Third, and Seventh Amendments which make it pretty clear there is an event of 

default. 

Appellants’ Counsel: It is a good question your Honor. In those amendments, I 

think it is Amendment 2 has the defined term “Specified Defaults.” That is a 

defined term. I think . . . .

The Court: Which includes the Whitehat accession? 

Appellants’ Counsel: It includes Whitehat accession. It does not state that it is a 

material breach. It says it is a “Specific Default” and that they could send notice. 

The Court: Is that your only argument because it seems like a tough argument to 

make when the parties go through at least three of these amendments that deal 

expressly with the Whitehat accession and say it is a “Specified Default” entitling 

the Lenders issue a notice of [acceleration of default]. 

Appellants’ Counsel: Yeah, it is a tough provision to deal with. But I would say 

that the Lenders’ counsel knew how to draft this more precisely to state that this 

was a material breach, and you had no defenses to it. That was not done. It is a 

Specified Default for purposes of the lender is not waving their rights to send out 
39

Default.”161 Moreover, the amendments specify what will happen in the event of a 

Specified Default. Thus, although the amendments do not include the word “material,” the 

amendments still specify that GLAS is entitled to exercise its remedies. 

Nor is this a situation where a sophisticated party tricked an unsophisticated party 

with fine print and legal jargon. The amendments were contracts extensively negotiated 

by sophisticated, well-counseled parties and the several rounds of amendments 

demonstrate an obvious, deliberate effort by the parties to address this specific issue. 

Accordingly, the parties are bound by the terms of the Credit Agreement. For these 

reasons, we need not address Appellants’ other substantive arguments because they are 

foreclosed by the explicit language of the Second, Third, and Seventh Amendments to the 

Credit Agreement. 

notice. They were extending, clearly from a practical standpoint. They were trying 

to . . . keep this loan on the books and functioning but . . . . 

The Court: But the use of the word “material” is not in here. I mean it says that, 

the Seventh Amendment, for example, none of the Specified Defaults [] referred to 

in amendment number two can cured or remedied following the date of this 

agreement other than by waiver by the Required Lenders. I mean that is pretty cut 

and dry, isn’t it? 

Appellants’ Counsel: The language appears to be cut and dry. I think under New 

York’s law about trivial breaches, I think there is an argument that could made to 

the New York courts that deal with these agreements stating that “that’s great, it 

can’t be waived. But was it really material which is a requirement. Is it trivial is it 

non-monetary?” The court would have to deal with that, but this is a 225 case that

. . . was rapid and narrowly tailored to a corporate dispute, not this large credit 

agreement dispute that was supposed to be in New York as we argue. 

Oral Argument, at 13:53 –16:23, https://vimeo.com/982096660.

161 B070 (Second Amendment § 1(a)(c)).
40

C. Appellants’ Impossibility Defense is Unavailing 

The final issue we address is Appellants’ contention that the trial court erred in 

holding that the inability of T&L to procure RBI approval for Whitehat’s additional 

guarantee was not excused by the grounds of legal impossibility. We agree with the trial 

court’s analysis and conclusion. 

To resolve this issue, we borrow from the trial court’s cogent analysis of New York 

contract law. New York, like Delaware,162 recognizes the defense of impossibility. Under 

certain circumstances, a party can be freed of its contractual obligations when performance 

is rendered impossible. However, as demonstrated by the case law cited by the trial court, 

this defense is tightly constrained as “[w]hile such defenses may have been recognized in 

the common law, they have been applied narrowly, due in part to judicial recognition that 

the purpose of contract law is to allocate the risks that might affect performance and that 

performance should be excused only in extreme circumstances.”163 In light of this narrow 

application, “[i]mpossibility excuses a party’s performance only when the destruction of 

the subject matter of the contract or the means of performance makes performance 

162 See Bobcat N. Am., LLC v. Inland Waste Holdings, LLC, 2019 WL 1877400, at *9 (Del. Super. 

2019) (“Under Delaware law, an impracticability/impossibility defense requires the showing of 

‘(1) the occurrence of an event, the nonoccurrence of which was a basic assumption of the contract; 

(2) the continued performance is not commercially practicable; and (3) the party claiming 

impracticability did not expressly or impliedly agree to performance in spite of impracticability 

that would otherwise justify nonperformance.’”) (quoting Chase Manhattan Bank v. Iridium Afr.

Corp., 474 F. Supp.2d 613, 620 (D. Del. 2007)). 

163 Kel Kim Corp. v. Cen. Mkts, Inc., 519 N.E.2d 295, 296 (N.Y. 1987) (emphasis added). 
41

objectively impossible. Moreover, the impossibility must be produced by an unanticipated 

event that could not have been foreseen or guarded against in the contract.”164 

The trial court noted two other aspects of the impossibility defense that bear 

repeating. First, the burden is on the party that invokes the affirmative defense of 

impossibility to demonstrate that performance is impossible.165 Second, although a change 

in law can render performance impossible, “[w]hen a change of law is reasonably 

foreseeable at the time a contract is entered into, impossibility of performance is no 

defense.”166

We find it difficult to see the changes to the ODI regulations as being unforeseeable 

under this legal framework given the sequence of events surrounding the execution of the 

Credit Agreement and the changes to the ODI regulations. The Credit Agreement was 

executed on November 24, 2021, when the RBI operated under the Former ODI 

Regulations.167 Because the Former ODI Regulations allowed a subsidiary to rely on, and 

in effect “borrow” from, its parent entity’s net worth to satisfy the Net Worth Test via the 

Borrowing Exception, the Former ODI Regulations allowed Whitehat to satisfy the Net 

Worth Test.

168

 However, three months before the execution of the Credit Agreement, the

164 Id. (emphasis added). 

165 Red Tree Invs., LLC v. Petróleos de Venezuela, S.A., 2021 WL 6092462, at *5 (S.D.N.Y., 2021), 

aff'd, 82 F.4th 161 (2d Cir. 2023)).

166 WILLISTON ON CONTRACTS § 77:54 (4th ed.) (“Realistically, the fact that there will be changes 

in law, administrative rules, and regulations is generally foreseeable.”). 

167 Bench Ruling at 6:2–4; A1314–15 (Andhyarujina Declaration ¶ 3 (viii)).

168 Bench Ruling at 6:12–15; A1315 (Andhyarujina Declaration ¶ 3 (x)).
42

RBI, on August 9, 2021, publicly published the Proposed ODI Regulations.

169

 The 

Borrowing Exception was notably absent from the Proposed ODI Regulations.170 The RBI 

then adopted the New ODI Regulations on August 22, 2022 – after the execution of the 

Credit Agreement.

171

 Consistent with the Proposed ODI Regulations, the New ODI 

Regulations discontinued the Borrowing Exception.172

Given this sequence of events, it was foreseeable at the time of executing the Credit 

Agreement that the RBI might eliminate the Borrowing Exception because the RBI had 

already omitted it from the publicly available Proposed ODI Regulations. As these 

Proposed ODI Regulations were released three months prior to the execution of the Credit 

Agreement, we struggle to believe that the sophisticated, well-counseled parties for this 

billion-dollar transaction could not have foreseen the elimination of the Borrowing 

Exception. In other words, the removal of the Borrowing Exception was not an 

unforeseeable, “unanticipated event that could not have been foreseen or guarded against 

in the contract.”173 

The declaration from GLAS and Pohl’s Indian law expert further supports our view. 

The expert stated that the Proposed ODI Regulations’ omission of the Borrowing Exception 

would have been understood to mean that the Borrowing Exception would be no longer 

169 A1369–70 (Expert Declaration of Mr. Atul Pandey Pursuant to 10 Del. C. 5356 ¶¶ 18–19 n.8–

9, dated July 19, 2023).

170 Bench Ruling at 10:9–12.

171 Bench Ruling at 11:5–8; A1317–A1318 (Andhyarujina Declaration ¶ 2 (xvii–xviii)).

172 Bench Ruling at 11:5–8; A1317–A1318 (Andhyarujina Declaration ¶ 2 (xvii–xviii)).

173 Kel Kim Corp. v. Cen. Mkts, Inc., 519 N.E.2d 295, 296 (N.Y. 1987).
43

recognized.174 We are not convinced by Appellants’ expert’s contrary view that the change 

was not foreseeable because the removal of the Borrowing Exception was not “apparent” 

from the Proposed ODI Regulations because the regulations did not “expressly state” the 

change.175 Rather, we agree with the trial court’s conclusion that “[s]howing that a change 

in law was not explicit does not show that it was not foreseeable. The change in law need 

not be explicitly spelled out to be foreseeable.”176 

The context of Red Tree is analogous to the situation in this case and supports the 

holding here. In Red Tree, which is summarized earlier, the court rejected an impossibility 

defense where an executive order sanctioned certain Venezuelan persons and entities

several weeks before the parties reached the agreement in dispute.

177

 The court determined 

that a future expansion of those sanctions was foreseeable and that the defendants had 

failed to “guard[] against the contingency of expansion of sanctions.”178 As a result, the

Red Tree defendants failed to meet the burden of proof on the affirmative defense of 

impossibility.179 

174 A1383–84 (Expert Declaration of Mr. Atul Pandey Pursuant to 10 Del. C. 5356 ¶ 47, dated July 

19, 2023).

175 A1328–A1329 (Andhyarujina Declaration ¶ 17).

176 Bench Ruling at 33:11–14. 

177 Red Tree Invs., LLC v. Petróleos de Venezuela, S.A., 2021 WL 6092462, at *6 (S.D.N.Y., 2021), 

aff'd, 82 F.4th 161 (2d Cir. 2023)).

178 Id.

179 Id. at *7 (“Because the expansion of the pre-existing Venezuelan sanctions to include a stateowned business and the risk-adverse reaction of some members of the banking community could 

have been foreseen and guarded against in the contract, defendants cannot meet its burden of proof 

on the affirmative defense of impossibility.”). 
44

Appellants’ argument that Red Tree is distinguishable because performance in Red 

Tree was difficult, but not impossible, falls flat. The Red Tree court mentioned this as one 

rationale, but the court also held that “[a]s alternative grounds for granting summary 

judgment against PDVSA, the Court concludes that defendants have failed to demonstrate 

that the sanctions were not reasonable foreseeable.”180 Appellants’ second argument that 

the Credit Agreement’s silence on the issues distinguishes the present case from Red Tree

also comes up short. Although the Red Tree court acknowledged that the agreement in that 

case expressly contemplated the sanctions that rendered performance impossible, the 

holding did not turn on that point. Rather, the court held that the impossibility defense 

failed because the impossibility “could have been foreseen and guarded against in the 

contract[.]”181 

Here, we hold that the elimination of the borrowing exception “could have been 

foreseen and guarded against.”182 Although no official law or executive order was 

promulgated by the Indian government, the RBI publicly signaled its intention to remove 

the Borrowing Exception when it published the Proposed ODI Regulations. Accordingly, 

because the sophisticated, well-counseled parties in this case failed to guard against the 

very real possibility of the Borrowing Exception’s removal, Appellants did not meet their 

burden of proof on the affirmative defense of impossibility.183

180 Id. at *6.

181 Id. at *7.

182 Id.

183 Appellants’ citation to Campo v. Board of Education, Brookhaven-Comsewogue Union Free 

School District, does not persuade us otherwise. 622 N.Y.S.2d 66 (N.Y. App. Div. 1995). 
45

To summarize: (i) we need not decide whether non-signatory Pohl is bound by the 

forum selection clause because this issue was not fairly presented below; (ii) Appellees 

were entitled to exercise the default remedies because Appellants conceded the breach of 

the Credit Agreement in the Second, Third, and Seventh Amendments entitling GLAS to 

enforce its remedies; and (iii) the defense of impossibility is inapplicable because the 

change in the ODI regulations was reasonably foreseeable.184 

IV. CONCLUSION

For the reasons set forth above, we AFFIRM the Court of Chancery’s opinion.

Appellants highlight language from Campo stating that “[w]hen a municipality takes action, after 

the signing of the contract, which makes the bargain impossible, it would be inequitable to require 

performance[.]” Campo, 622 N.Y.S.2d at 67. However, the context of Campo is significantly 

different from this case because there, a municipality changed a property’s zoning classification 

unexpectedly and without warning after a land sale contract had been signed.

184 The Court of Chancery, having ruled on the consequences of the Whitehat guarantee default, 

did not address the alleged reporting defaults. See Bench Ruling at 17:8–11. Nor do we.