Article 67 of AoA25 Mar 2020 07:39
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As is standard the board has the power to borrow money, in which case, a board resolution would be required. A sensible lender would presumably request a copy along with certification by the Company Secretary that the board resolution was valid. Along with a legal opinion from competent counsel that the board resolution was in conformity with the AoA. NMC's AoA put a limit on aggregate borrowing unless modified by an ordinary general resolution. Article 67 is the relevant section.
States:
“borrowings which are owed by one Group company to another Group company) after deducting the amount of cash deposited will not exceed or would not, as a result of such borrowing, exceed:
(i) an amount equal to 2.5 times adjusted total equity; or
(ii) any higher limit fixed by ordinary resolution of the Company which is applicable at the relevant time.”
AA would presume that the lender requested a certificate to the borrowing being within this limit. 67 f and g suggest where such a certificate might originate. A lot of questions about what was requested, what was given, and who certified …
(H) and (I) as below are a killer and seem to put liability on NMC.
(H) No lender or other person dealing with any Group company need enquire whether the limit imposed under paragraph ?(b) has been or will be complied with.
(I) A borrowing or security resulting in a breach of the limit shall not be void nor shall it be voidable at the instance of the Company or any other Group company.