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

On 30 December 2020 GL, Katerra Cayman, Katerra Delaware and the rest of the Katerra Sellers entered into the Contribution and Exchange Agreement, or CEA.

The CEA provided for GL to release its indebtedness to Katerra Delaware under the RPA and other Transaction Documents as defined under the RPA (the “Greensill Indebtedness”), in exchange for 762,144 shares in Katerra Cayman.

Under clause 1, GL contributed the Greensill Indebtedness to Katerra Cayman in exchange for “the Consideration”:

“First Contribution and Consideration. Greensill hereby contributes, transfers, assigns and delivers to the capital of [Katerra Cayman], and [Katerra Cayman] hereby accepts, assumes and receives from Greensill, the Greensill Indebtedness. In exchange for the Contribution, [Katerra Cayman] hereby agrees to provide the Consideration.”

The recitals provided that the “Consideration” was that set out in Exhibit A, being “762,144.0 shares of the Series A Preferred Stock of [Katerra Cayman].”

Clause 2 provided:

“Second Contribution. Immediately upon completion of the First Contribution, [Katerra Cayman] shall contribute, transfer, assign and deliver to the capital of Katerra Delaware, and Katerra Delaware hereby accepts, assumes and receives from [Katerra Cayman], the Greensill Indebtedness.”

Clause 3 provided:

“(a)

the aggregate amount of the Facility Obligations (as defined in the Receivables Purchase Agreement) and all other monetary obligations under the Greensill Finance Documents shall be deemed indefeasibly paid and discharged in full;

(b)

all commitments to extend credit to the Company, Katerra Delaware and each Seller under the Greensill Finance Documents shall be automatically terminated;

(c)

all other obligations of Greensill, the Company, Katerra Delaware, each Seller and its respective subsidiaries and affiliates under the Greensill Finance Documents or any other documents between the parties shall be indefeasibly released, discharged and terminated in full and have no further force or effect; and

(d)

each of the Greensill Finance Documents and any other documents between the parties shall be automatically cancelled, terminated and of no further force or effect.”

Clause 7 provided:

“Security. Upon, and effective as of, the time of receipt by Greensill of the Consideration in the manner described above (such time being referred to as the “Effective Time”) and not withstanding anything in the Greensill Finance Documents to the contrary:

(a)

Greensill will promptly deliver any possessory Security (as defined below) held by it to the Company (or such other person specified by the Company in writing); and

(b)

all guarantees, security interests, mortgages, pledges and other liens granted to or held by Greensill as security for the obligations under the Greensill Finance Documents (any and all such guarantees, security interests, mortgages, pledges and other liens granted by the Company, Katerra Delaware, each Seller or any of its or their respective subsidiaries and affiliates in favor of Greensill, collectively, the “Security”) shall be automatically, and without the need for any further action or approval, forever satisfied, released and discharged. …”

Clause 8(a) provided that GL (on behalf of itself and its affiliates, together the “Greensill Releasors”) released and discharged all claims which they “ever had, now has, or which any successor or assign of such Greensill Releasor hereafter can, shall, or may have” against Katerra Cayman, Katerra Delaware and their affiliates from all claims, save for limited exceptions.

Clause 9(e) provided that “as of the date hereof, Greensill shall have no further commitment or obligation to fund or purchase any Receivables under the [RPA]”.