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Tips for Financially Troubled Businesses


6. Protect your bank account. If you owe money to a bank, it's often wise to keep most of your checking and other accounts elsewhere. This is because your loan agreement may give the bank the right to take your funds without prior notice if the bank thinks you're in financial trouble. (This is called a "setoff.") It can be a rude surprise to learn that your lender has drained your checking account.

7. Plan for ongoing insurance coverage. If your business winds up in a Chapter 11 reorganization or you end up in a Chapter 13 reorganization, you may have a tough time finding an insurance carrier willing to renew your business coverage or issue a new policy. You'll want to have insurance in place that extends at least 12 months into the future. As long as you pay on time, the insurance can't be canceled, and you'll enjoy some peace of mind.

8. Don't panic about utilities or your lease. If you declare bankruptcy, the utility companies can't use this as an excuse for shutting off services, although they can require you to post a reasonable deposit to keep on the lights, phone service, and heat. Similarly, as long as you continue to pay your rent, your landlord can't kick you out. Don't be spooked by the clause commonly placed in commercial leases saying you're automatically in default if you file for bankruptcy. These clauses are generally not enforceable (except against sublessees and assignees).

9. Consider returning some leased property. If you're leasing equipment and know you won't want to retain it if and when you file for bankruptcy, consider giving it back to the leasing company before you file. If you do so and the equipment is currently worth less than what you owe under the lease, this "deficiency" will get discharged in bankruptcy. On the other hand, if you prefer to keep the leased property, you'll need to continue making payments on time -- this obligation won't be discharged by your going through bankruptcy.

10. Don't borrow from the company's pension plan. Many pension plans don't allow you to borrow (or remove) money from the plan account. If you do, you could be assessed a penalty of up to 115% of the "borrowed" money. Worse, the plan could be "disqualified," meaning that all deductions would be disallowed, all plan assets distributed, and income tax and late payment penalties applied. Other plans may allow you to borrow money for approved purposes, but think twice before you do this: It leaves you with a smaller nest egg, and if you fail to pay back the loan, you could end up paying income taxes on the withdrawal, plus penalties of 10% to 25%.

Copyright 2007 Nolo

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