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

GCPL held a Board meeting on 29 October 2020 and approved a resolution to enter into the “Proposed transaction” which included entry by GCPL into the “Katerra Agreement” pursuant to which GCPL would (among other things) “release SoftBank from all liability in relation to the Katerra Programme, the …[Katerra Notes] and Credit Enhancement Programme in so far as it relates to the Katerra Notes and/or the Katerra Programme” and “account to the Vision Fund for any amounts recovered in respect of the Katerra Notes”.

This led to the negotiation of draft legal agreements. This took place between Allen & Overy (“A&O”) for the Greensill Group, Morrison and Foerster (“MoFo”) for SBG, and White & Case for the Vision Funds.

A&O was initially instructed on 28 October 2020 to document an agreement “between SoftBank, the Vision Fund and Greensill”. This later became the “Omnibus Deed” but was originally called the “Katerra Agreement”.

On 4 November 2020 Mr Jamie Funder of A&O emailed Mr Grubb-Sharma of MoFo, saying:

“On the transfer of the Katerra Notes to SVF, Greensill does not agree this position and is comfortable with the drafting suggested by SVF in the Katerra Agreement. SVF is putting Greensill in funds to the amount of $440m and Greensill will be able to use this to fund the buy back of the CS notes. That is why Greensill has the obligation to remit any funds recovered.”

On 6 November 2020 Ms Briony Edwards, Legal Director (Corporate Affairs) at the Greensill Group, emailed Mr Grubb-Sharma of MoFo stating:

“Greensill can reasonably agree to remit any recovered amounts within 21 days. We require this time because unwinding defaulted or cancelling existing notes requires unique actions by Clearstream, the Note Issuer SPV and by Citibank in its capacity as Security Trustee and Issuer - this will certainly take more than 3 days. Given the severe consequences of a breach (i.e. the first loss protection falls away) we need to build in a longer period of time. The loss of this protection would be cataclysmic for Greensill.

Any recoveries will rest in the segregated Katerra Collection Account - which is the way the Greensill process works.”