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

The Omnibus Deed was concluded between GCPL (referred to as “Greensill” in the agreement), GCUK (referred to as “Greensill UK”), SBG, Mr Greensill and SVF II Holdings (defined as “Vision Fund II”). It recited inter alia:

“(C)

On or around the date of this Deed, a subsidiary of the Vision Fund II, SVF II Wyatt Subco (Singapore) Pte. Ltd., subscribed for US$440,000,000 in return for the issue of convertible loan notes which on conversion convert into 86,713 shares in Greensill (SVF II Loan Note). As part of the consideration provided by Greensill in respect of the SVF II Loan Note, Greensill will assume any and all losses in respect of the Katerra Notes and the Katerra Programme (each as defined below); and

(D)

In connection with Greensill assuming any and all losses in respect of the Katerra Notes and the Katerra Programme, SoftBank agreed to conditionally waive CDS Greensill First Loss 2020 – 2021 (as defined below) on the terms set out in this Deed and Lex Greensill agreed to enter into a sale and purchase deed with SoftBank on or around the date of this Deed (SPA) with respect to the sale and purchase of certain shares in Greensill.”

Clause 2.1 provided that Mr Greensill, GCPL and GCUK agreed to release any claims against “SoftBank [defined as SBG], Vision Fund II, SVF Wyatt (Singapore) Limited and SB Investment Advisers (UK) Limited and each of their Related Parties” from obligations relating to:

“(a)

the Katerra Programme;

(b)

the Katerra Notes;

(c)

any credit default swap, guarantee or other credit enhancement in respect of or otherwise in so far as it relates to the Katerra Programme (or the failure by any of the Releasees to provide any such credit default swap, guarantee or other credit enhancement);

(d)

the contemplated joint venture between SoftBank and Greensill UK, occasionally referred to as Credition Global Limited, which SoftBank and Greensill UK discussed forming for the purpose of providing guarantees to Greensill UK and/or its affiliates in respect of financing transactions between, on the one hand, Greensill UK and its affiliates, and on the other hand, portfolio companies in which SoftBank and its affiliates are invested, including its formation or any of its contemplated activities”.

Clause 4.2 addressed GCUK’s liability to pay the “CDS Greensill First Loss 2020-2021”, defined under clause 1.1(a) as the “annual first loss of US$100,000,000 payable by [GCUK] under the terms of Credit Enhancement Programme on or prior to 8 October 2021”. It provided that: “[SBG] acknowledges and agrees that any amount payable by Greensill UK in relation to CDS Greensill First Loss 2020-2021 is hereby waived”.

“Katerra Notes” was defined as “the notes issued by Hoffman S.a r.L, compartment MZ (which are backed by payment obligations originated under the Katerra Programme)”.

“Katerra Programme” was defined as “the receivables financing programme provided by Greensill Limited as buyer and amongst others, Katerra Inc. as a seller under a receivables purchase agreement dated 9 December 2019 (as amended, restated and or updated from time to time)”, i.e. the RPA.

Clause 2.4 provided that:

“The Releasors shall acknowledge that [GCPL] has and shall bear sole liability and responsibility for any and all actual or threatened losses, costs or damages (howsoever arising) incurred by Greensill or any of its Related Parties (including, for the avoidance of any doubt but without limitation, Lex Greensill) arising out of, in connection with or relating in any way to the Katerra Programme, the Katerra Notes or any of the Released Claims.”

Clause 3 provided that:

“[GCPL] and [GCUK] shall and shall procure that each other Greensill Group Company shall:

(a)

account to the Vision Fund II or any subsidiary, affiliate or third party nominated by the Vision Fund II for any amounts recovered in respect of the Katerra Notes and/or Katerra Programme and promptly following receipt remit such amounts in immediately available funds to the Vision Fund II (or to such person nominated by Vision Fund II);

(b)

use its best endeavours to recover any amounts to which it or any Greensill Group Company is entitled to under the Katerra Notes and/or Katerra Programme;

(c)

recover under the Katerra Notes and/or Katerra Programme at least US$176,000,000 in the aggregate by 31 December 2020 and remit such aggregate amount to Vision Fund II (or to such person nominated by Vision Fund II) in immediately available funds by no later than 31 December 2020; and

(d)

promptly provide such documentation and information as SoftBank may reasonably request from time to time to monitor the performance of Greensill's and Greensill UK's obligations under this Clause 3”.

Clause 11.1 provided that:

“The Parties agree: (a) to keep this Deed, the existence of this Deed and the transactions contemplated by this Deed confidential”.