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(a)
In this section, "cash collateral" means cash, negotiable
instruments, documents of title,
securities, deposit accounts, or other cash equivalents
whenever acquired in which the estate and an
entity other than the estate have an interest and
includes the proceeds, products, offspring, rents, or
profits of property and the fees, charges, accounts or other
payments for the use or occupancy of rooms and other public
facilities in hotels, motels, or other lodging properties
subject to a
security interest as provided in section
552(b) of this title, whether existing before or after
the commencement of a case under this title.
(b)(1) The trustee,
after notice and a hearing, may use, sell, or lease,
other than in the ordinary course of business, property
of the estate, except that if the
debtor in connection with offering a product or a service
discloses to an individual a policy prohibiting the
transfer of
personally identifiable information about individuals
to persons that are not
affiliated with the
debtor and if such policy is in effect on the date of
the commencement of the case, then the trustee
may not sell or lease
personally identifiable information to any
person unless—
(A) such sale or such lease is consistent with such
policy; or
(B) after appointment of a consumer privacy ombudsman
in accordance with section
332, and
after notice and a hearing, the court approves such
sale or such lease—
(i) giving due consideration to the facts, circumstances,
and conditions of such sale or such lease; and
(ii) finding that no showing was made that such
sale or such lease would violate applicable nonbankruptcy
law.
(2)
If notification is required under subsection (a) of section
7A of the Clayton Act
in the case of a transaction under this subsection, then—
(A)
notwithstanding subsection (a) of such section, the notification
required by such subsection to be given by the
debtor shall be given by the trustee; and
(B)
notwithstanding subsection (b) of such section, the required
waiting period shall end on the 15th day after the date
of the receipt, by the Federal Trade Commission and the
Assistant Attorney General in charge of the Antitrust Division
of the Department of Justice, of the notification required
under such subsection (a), unless such waiting period is
extended—
(i)
pursuant to subsection (e)(2) of such section, in the same
manner as such subsection (e)(2) applies to a cash tender
offer;
(ii)
pursuant to subsection (g)(2) of such section; or
(iii)
by the court
after notice and a hearing.
(c)(1) If the business
of the
debtor is authorized to be operated under section
721,
1108,
1203,
1204, or
1304 of this title and unless the court orders otherwise,
the trustee may enter into transactions, including the sale
or lease of property of the estate, in the ordinary course
of business, without notice or a hearing, and may use property
of the estate in the ordinary course of business without
notice or a hearing.
(2)
The trustee
may not use, sell, or lease cash collateral under paragraph
(1) of this subsection unless—
(A)
each
entity that has an interest in such cash collateral
consents; or
(B)
the court,
after notice and a hearing, authorizes such use, sale,
or lease in accordance with the provisions of this section.
(3)
Any hearing under paragraph
(2)(B)
of this subsection may be a preliminary hearing or may be
consolidated with a hearing under subsection
(e) of
this section, but shall be scheduled in accordance with
the needs of the
debtor. If the hearing under paragraph
(2)(B)
of this subsection is a preliminary hearing, the court may
authorize such use, sale, or lease only if there is a reasonable
likelihood that the trustee will prevail at the final hearing
under subsection (e) of this section. The court shall act
promptly on any request for authorization under paragraph
(2)(B)
of this subsection.
(4)
Except as provided in paragraph
(2) of
this subsection, the trustee shall segregate and account
for any cash collateral in the trustee's possession, custody,
or control.
(d)
The trustee may use, sell, or lease property under subsection
(b) or
(c) of
this section—
(1) in
the case of a debtor that is a
corporation or trust that
is not a moneyed business, commercial corporation,
or trust, only in accordance with nonbankruptcy law
applicable to the transfer of property by a debtor that
is such a
corporation or trust; and
(2) only to the extent not inconsistent with any relief
granted under section
(c),
(d),
(e), or
(f) of section
362.
(e)
Notwithstanding any other provision of this section, at
any time, on request of an
entity that has an interest in property used, sold,
or leased, or proposed to be used, sold, or leased, by the
trustee, the court, with or without a hearing, shall prohibit
or condition such use, sale, or lease as is necessary to
provide adequate protection of such interest. This subsection
also applies to property that is subject to any unexpired
lease of personal property (to the exclusion of such property
being subject to an order to grant relief from the stay
under section
362).
(f)
The trustee may sell property under subsection
(b) or
(c) of
this section free and clear of any interest in such property
of an
entity other than the estate, only if—
(1)
applicable nonbankruptcy law permits sale of such property
free and clear of such interest;
(2)
such
entity consents;
(3)
such interest is a
lien and the price at which such property is to be sold
is greater than the aggregate value of all
liens on such property;
(4)
such interest is in bona fide dispute; or
(5)
such
entity could be compelled, in a legal or equitable proceeding,
to accept a money satisfaction of such interest.
(g)
Notwithstanding subsection
(f) of
this section, the trustee may sell property under subsection
(b) or
(c) of
this section free and clear of any vested or contingent
right in the nature of dower or curtesy.
(h)
Notwithstanding subsection
(f) of
this section, the trustee may sell both the estate's interest,
under subsection
(b) or
(c) of
this section, and the interest of any co-owner in property
in which the
debtor had, at the time of the commencement of the case,
an undivided interest as a tenant in common, joint tenant,
or tenant by the entirety, only if—
(1)
partition in kind of such property among the estate and
such co-owners is impracticable;
(2)
sale of the estate's undivided interest in such property
would realize significantly less for the estate than sale
of such property free of the interests of such co-owners;
(3)
the benefit to the estate of a sale of such property free
of the interests of co-owners outweighs the detriment, if
any, to such co-owners; and
(4)
such property is not used in the production, transmission,
or distribution, for sale, of electric energy or of natural
or synthetic gas for heat, light, or power.
(i)
Before the consummation of a sale of property to which subsection
(g) or
(h) of
this section applies, or of property of the estate that
was community property of the
debtor and the
debtor's spouse immediately before the commencement
of the case, the
debtor's spouse, or a co-owner of such property, as
the case may be, may purchase such property at the price
at which such sale is to be consummated.
(j)
After a sale of property to which subsection
(g) or
(h) of
this section applies, the trustee shall distribute to the
debtor's spouse or the co-owners of such property, as
the case may be, and to the estate, the proceeds of such
sale, less the costs and expenses, not including any compensation
of the trustee, of such sale, according to the interests
of such spouse or co-owners, and of the estate.
(k)
At a sale under subsection
(b) of
this section of property that is subject to a
lien that secures an allowed
claim, unless the court for cause orders otherwise the
holder of such
claim may bid at such sale, and, if the holder of such
claim purchases such property, such holder may offset
such
claim against the purchase price of such property.
(l)
Subject to the provisions of section
365, the trustee may use, sell, or lease property under
subsection
(b) or
(c) of this section, or a plan under chapter
11,
12, or
13 of this title may provide for the use, sale, or lease
of property, notwithstanding any provision in a contract,
a lease, or applicable law that is conditioned on the insolvency
or financial condition of the
debtor, on the commencement of a case under this title
concerning the
debtor, or on the appointment of or the taking possession
by a trustee in a case under this title or a
custodian, and that effects, or gives an option to effect,
a forfeiture, modification, or termination of the
debtor's interest in such property.
(m)
The reversal or modification on appeal of an authorization
under subsection
(b) or
(c) of
this section of a sale or lease of property does not affect
the validity of a sale or lease under such authorization
to an
entity that purchased or leased such property in good
faith, whether or not such
entity knew of the pendency of the appeal, unless such
authorization and such sale or lease were stayed pending
appeal.
(n)
The trustee may avoid a sale under this section if the sale
price was controlled by an agreement among potential bidders
at such sale, or may recover from a party to such agreement
any amount by which the value of the property sold exceeds
the price at which such sale was consummated, and may recover
any costs, attorneys' fees, or expenses incurred in avoiding
such sale or recovering such amount. In addition to any
recovery under the preceding sentence, the court may grant
judgment for punitive damages in favor of the estate and
against any such party that entered into such an agreement
in willful disregard of this subsection.
(o) Notwithstanding subsection
(f), if
a
person purchases any interest in a consumer credit transaction
that is subject to the Truth in Lending Act
or any interest in a consumer credit contract (as defined
in section 433.1 of title 16 of the Code of Federal Regulations
(January 1, 2004), as amended from time to time), and if
such interest is purchased through a sale under this section,
then such
person shall remain subject to all
claims and defenses that are related to such consumer
credit transaction or such consumer credit contract, to
the same extent as such
person would be subject to such
claims and defenses of the consumer had such interest
been purchased at a sale not under this section.
(p) In any hearing under this section—
(1)
the trustee has the burden of proof on the issue of adequate
protection; and
(2)
the
entity asserting an interest in property has the burden
of proof on the issue of the validity, priority, or extent
of such interest.
(Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2572; Pub.
L. 98-353, title III, § 442, July 10, 1984, 98 Stat.
371; Pub. L. 99-554, title II, § 257(k), Oct. 27, 1986,
100 Stat. 3115; Pub. L.
103-394, title I, § 109, title II, § 214(b), 219(c),
title V, § 501(d)(8), Oct. 22, 1994, 108 Stat. 4113,
4126, 4129, 4144; Pub. L.
109-8, Title II, Subtitle A, §
204, Subtitle C, §
231(a), Title XII, §
1221(a), April 20, 2005, 119 Stat. 49, 72,
195; Pub. L.
111-327, § 2(a)(13), Dec. 22,
2010, 124 Stat. 3559.)
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