Aurelius Capital Master Ltd. v Hertz Intl. Ltd.

Holding The Appellate Division affirmed the judgment awarding plaintiffs the Alternative Financing Premium, holding that the phrase ‘commits to raise’ in the Backstop Agreement encompasses significant affirmative steps toward securing financing, not just binding agreements. The court further held that the impossibility exception did not apply because the Scheme Transaction remained legally feasible despite the failure to obtain a Bifurcation Order.

The court’s words

The more coherent interpretation is that 'commit to raise' encompasses significant affirmative steps toward securing alternative financing

2026 NY Slip Op 05369, at the official text

If 'commit' required a binding agreement, 'raise' would become surplusage

2026 NY Slip Op 05369, at the official text

The phrase 'raises or commits to raise' is disjunctive

2026 NY Slip Op 05369, at the official text

The trial court reasonably found that the Scheme Transaction remained legally feasible

2026 NY Slip Op 05369, at the official text

The language of the indemnification provision falls short of satisfying the exacting standard

2026 NY Slip Op 05369, at the official text