CR-2025-001156 - [2025] EWHC 2129 (Ch)

As noted, the Facility Agreement is supported by the Guarantee. This is a first demand guarantee, last restated on 7 September 2021, the parties thereto being MOL, MOSA, BMK and Outrider. The Guarantee is governed by English law (Clause 15).

Clause 2.3 provides that “the guarantee for the payment of sums due under the [Facility] Agreement will be up to a maximum amount of US$80,000,000.” MOL says that this provision is an effective limit on the guarantor’s liability and, therefore, on the sum that can be recovered in the insolvency of the guarantor even though the creditor might be able to prove for the entire debt. Moreover, being a guarantee of “sums due under the [Facility] Agreement” up to US$80m, MOL says that, on a normal strict interpretation of a guarantee in favour of the guarantor in the event of an ambiguity in its wording, the limit of liability provided for by clause 2.3 is properly construed as an aggregate limit on the amounts recoverable by both Outrider and BMK under the Guarantee.

As such, MOL says that Mr Hope is wrong to suggest that the basis on which Outrider’s Plan consideration has been calculated is unfair because the interest accruing on the Facility Agreement would increase Outrider’s pre-Plan claims above US$71.3m. If anything, the calculations of the Plan consideration are likely to be more favourable to Outrider than the position at law, Outrider’s present claims under the Guarantee amounting to approximately US$71.3m compared to BMK’s present claims of US$13.4m, exceeding the US$80m cap in aggregate, but the Plan calculations ignoring the effect of the limit in Clause 2.3. However, even if that limit did operate in favour of each lender individually, MOL says that the cap still means that Outrider’s claims cannot rise significantly above the US$71.3m figure used to calculate the Plan consideration.