FL-2022-000014 - [2025] EWHC 2631 (Ch)

On 28 November 2020 a draft Amended Omnibus Deed and draft Amended $440m CLN were circulated by Ms Edwards to Mr Cheung and others at SBIA. She explained the “key changes reflected in the documents”:

“Amended and Restated Omnibus Deed

• Removal of reference to the value of Vision Fund II CLN. We do not wish to attribute a benefit to the grant of additional shares to any one single event. This would require Greensill to have to value such event which could have P&L consequences.

• Deletion of Greensill's obligation to repay USD 176m and the inclusion of general language to make recoveries for amounts received pursuant to the Katerra programme to the extent any are received.”

On 3 December 2020 Ms Edwards emailed Ms Chan and others at SBIA in an email with the subject “Katerra settlement”, stating “[f]urther to our call last night, I can confirm that we have circled round internally and there are no issues with a delay to entering into the debt settlement arrangement”.

On 4 December 2020 Mr Tin emailed Mr Housenbold in an email with the subject “Katerra – Board consent (SB Bridge financing)” stating under the heading “Transaction steps” that: “Wolff will be able to get the releases and MFN amendment done by December 15, after which HSR is the remaining gating item”.

On 12 December 2020 Katerra, SVF Abode (Cayman) Ltd and Wolff Principal Holdings LP signed a “Summary of Indicative Terms for Settlement of Claims” which contemplated “[a] single instrument executed by each of the Parties, waiving and amending applicable provisions in each of the…prime construction contracts for each of the Active Projects and Completed Projects, as amended from time to time”. The “Conditions Precedent” included:

“To include contemporaneous investment by SVF Abode (Cayman) Limited (“SVF”) of $175 million in cash and the extinguishment of $25 million of indebtedness of Katerra Inc. (‘Katerra’) owed to SVF under the Promissory Note, dated December 1, 2020, issued by Katerra to SVF in exchange for a new class of preferred shares, the conversion of all preferred shares outstanding as of the date hereof into common shares, the extinguishment of $440 million principal amount of indebtedness of Katerra and certain of its subsidiaries owed to Greensill Limited in exchange for preferred shares being issued to Greensill Limited that are the same as those being issued to SVF and equal to [5% of the fully-diluted equity], and an aggregate of 5% of the fully-diluted equity will be made available to certain existing investors in Katerra…who will provide a release and enter into customary shareholder arrangements, with the specific security, shareholder arrangements, identity and eligibility of the Existing Investors to be agreed among Katerra, SVF, Wolff Principal Holdings, LP and controlled affiliates (“Wolff”).”

On 15 December 2020 a draft of the CEA was sent by email by Mr Brendan Franich, General Counsel at the Katerra Group, to the Greensill Group’s internal lawyers, Mr Chuck Bronowski and Ms Mireia Just, copying in lawyers at Kirkland & Ellis.

Mr Franich sent an email on 22 December “checking back on this one and by way of update”, attaching the draft CEA and stating:

“Katerra received HSR clearance, and so we should be set to close as early as this Thursday (but more likely early next week). Would you let us know if you have any comments or concerns on the attached document? And otherwise, could we discuss logistics on Greensill’s execution and delivery of the attached - ideally, we would get your signature page in the next day and hold it in escrow, subject to automatic release on the closing with SoftBank.”