UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

)

In re: )

)

NICKELS MIDWAY PIER, LLC )

)

Debtor. )

)

)

NICKELS MIDWAY PIER, LLC; )

JOHN NICKELS; ANGELO NICKELS; )

and STEVEN NICKELS, )

)

Appellants, )

)

v. )

)

WILD WAVES, LLC, )

)

Appellee. )

)

Appearances:

TEICH GROH

By: Brian W. Hofmeister, Esq.

691 State Highway 33

Trenton, New Jersey 08619

Counsel for Nickels Midway Pier, LLC

SHERMAN, SILVERSTEIN, KOHL, ROSE & PODOLSKY

By: Fredric R. Cohen, Esq.

Fairway Corporate Center

4300 Haddonfield Road

Pennsauken, New Jersey 08109

Special Litigation Counsel for Nickels Midway Pier, LLC

ARCHER & GREINER, P.C.

By: Jerrold S. Kulback, Esq.

One Centennial Square

Haddonfield, New Jersey 08033

Counsel for John, Steven and Angelo Nickels

HORNSTINE WERTHEIMER & PELLONI, LLC

By: Louis F. Hornstine, Esq.

1518 Walnut Street, Suite 1600

HONORABLE JOSEPH E. IRENAS

CIVIL ACTION 

NO. 10-6617 (JEI)

BANKRUPTCY NO. 03-49462(GMB)

OPINION

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Philadelphia, Pennsylvania 19102

Counsel for John, Steven and Angelo Nickels

COZEN O’CONNOR

By: Arthur J. Abramowitz, Esq.

Jerrold N. Poslusny, Jr., Esq.

Liberty View, Suite 300

457 Haddonfield Road

Cherry Hill, New Jersey 08002

Counsel for Wild Waves, LLC

FORD, FLOWER & HASBROUCK

By: Willis F. Flower, Esq.

Central Square

New Road & Central Avenue, Suite 42A

P.O. Box 405

Linwood, New Jersey 08221

Counsel for Wild Waves, LLC

IRENAS, Senior District Judge:

This matter comes before the Court on the appeal of Debtor

Nickels Midway Pier, LLC (“Nickels”) and John, Steven and Angelo

Nickels (“the Nickels Brothers”) , from the Bankruptcy Court’s 1

order of December 13, 2010, confirming Wild Waves, LLC’s (“Wild

Waves”) Third Modified, First Amended Plan for Liquidation (“the

Plan”). For the reasons that follow, the Court will affirm.

I.

Both Nickels (the debtor) and Wild Waves proposed plans of

 The Court will refer to Nickels and the Nickels Brothers 1

collectively as “Nickels” unless otherwise indicated.

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reorganization, but ultimately, the Bankruptcy Court confirmed 2

Wild Waves’ plan. The instant appeal concerns three aspects of 3

the Plan.

First, the Plan provides that Nickels will assume, pursuant

to 11 U.S.C. § 1123(b)(2), the contact of sale (“Sale

Agreement”), wherein Nickels agreed to sell its principal asset

(an amusement pier in Wildwood, New Jersey) to Wild Waves. For

reasons to be explained infra, the Bankruptcy Court determined

that the appropriate purchase price for the Pier, pursuant to the

Sale Agreement, was $3,051,380.

Second, the Plan treats the Nickels Brothers, the sole

 After the exclusive period in which only the debtor may 2

file a plan, see 11 U.S.C. § 1121(b), “[a]ny party in interest,

including the debtor, the trustee, a creditors’ committee, an

equity security holders’ committee, a creditor, an equity

security holder, or any indenture trustee, may file a plan.” 11

U.S.C. § 1121(c).

 The parties’ related disputes in and out of the instant 3

bankruptcy suit, and the appeals of those disputes, are too

numerous to cogently discuss in any one opinion. Thus, the

instant opinion only contains the facts most relevant to the

issues raised by the instant appeal. Additional discussions of

the facts and procedural history of this case, and related

litigation, may be found at Nickels Midway Pier, LLC v. Wild

Waves, LLC, 341 B.R. 486 (D.N.J. 2006), aff’d 255 F.App’x 633 (3d

Cir. 2007); Nickels Midway Pier, LLC v. Wild Waves, LLC, 372

B.R. 218 (D.N.J. 2007); In re: Nickels Midway Pier, LLC (Nickels

Midway Pier, LLC v. Wild Waves, LLC), 383 B.R. 595 (D.N.J. 2008),

aff’d 348 F.App’x 781 (3d Cir. 2009); In re: Nickels Midway Pier,

LLC, 2010 WL 415328 (D.N.J. Jan. 28, 2010); Scottsdale Ins. Co.

v. Weiner, 2010 WL 445649 (D.N.J. Feb. 1, 2010); In re: Nickels

Midway Pier, LLC (Nickels Midway Pier, LLC v. Wild Waves, LLC),

2010 WL 3881376 (D.N.J. Sept. 28, 2010). 

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equity interest holders, as having “unimpaired” interests 4

because the Nickels Brothers will retain their equity interests

and will receive a distribution in the event there are funds

available from the liquidation of the Debtor’s assets after

payment of all creditors.

Third, the Plan, pursuant to 11 U.S.C. § 1122(a), classifies

Wild Waves as the only impaired interest, thereby giving Wild

Waves, the Plan proponent, the sole vote to confirm the Plan.5

II.

The District Court has jurisdiction to hear appeals from

final judgments, orders and decrees of the Bankruptcy Court in

cases and proceedings referred pursuant to 28 U.S.C. § 157(a) to

the Bankruptcy Court. 28 U.S.C. § 158(a). 

The District Court reviews de novo the legal determinations

of the Bankruptcy Court. In re: Jersey City Medical Center, 817

F.2d 1055, 1059 (3d Cir. 1987). The Bankruptcy Court’s factual

determinations will be left undisturbed on appeal unless they are

clearly erroneous. Fed. R. Bankr. P. 8013.

 See 11 U.S.C. § 1124(1) (“a class of claims or interests 4

is impaired under a plan unless, with respect to each claim or

interest of such class, the plan--(1) leaves unaltered the legal,

equitable, and contractual rights to which such claim or interest

entitles the holder of such claim or interest.”)

 See 11 U.S.C. § 1126, governing “acceptance of plan.” 5

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III.

Nickels asserts four arguments: (1) Wild Waves’ Plan

provision in which Nickels assumes the Sale Agreement violates

the Bankruptcy Code; (2) the Bankruptcy Court erred in

determining the purchase price for the Pier; (3) the Nickels

Brothers are impaired; and (4) Wild Waves improperly

gerrymandered creditor classes so that it could have the sole

vote to confirm its own Plan.

The Court addresses each argument in turn.

A.

Nickels asserts that the Bankruptcy Code only allows the

trustee and debtors in possession to assume executory contracts,

i.e., a party in interest plan proponent cannot force a debtor 6

to assume an executory contract.

The relevant provision states, “a plan may– . . . (2)

subject to section 365 of this title, provide for the assumption,

rejection, or assignment of any executory contract . . . of the

debtor not previously rejected under such section.” 11 U.S.C. §

1123(b)(2). Section 365, in turn, provides, “the trustee,

subject to the court’s approval, may assume or reject any

executory contract . . . of the debtor,” 11 U.S.C. § 365; and in

 The Bankruptcy Court held that Wild Waves was a party in 6

interest under § 1121(b). 2010 Bankr. LEXIS 1642 at *20-21. 

Nickels does not appeal that ruling.

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a chapter 11 case, this same power is extended to a debtor in

possession. See 11 U.S.C. § 1107(a) (“Subject to [certain

limitations and exceptions] . . . a debtor in possession shall

have all the rights . . . and powers, and shall perform all the

functions and duties . . . of a trustee.”). Thus, Nickels

reasons, by expressly identifying trustees and debtors in

possession, the Code exclusively grants them the power to assume. 

Since it is beyond dispute that Wild Waves is neither a trustee

or the debtor in possession, Nickels concludes that Wild Waves’

Plan may not provide for assumption of the Sale Agreement.

Nickels cites three cases in support of its argument.

In Affordable Efficiencies, Inc., et al. v. Bane, et al.,

(In re: Bane), the bankruptcy court held that an unexpired lease

had been automatically rejected pursuant to 11 U.S.C. §

365(d)(4). 228 B.R. 835, 839-41 (Bankr. W.D. Va. 1998). The 7 8

debtor argued that by accepting lease payments for over a year,

and failing to seek to compel the debtor to assume or reject the

lease, the lessor should be estopped from arguing that the lease

was automatically rejected by operation of law. Id. at 41. The

 “. . . if a Trustee does not assume or reject an 7

unexpired lease of nonresidential real property . . . within 60

days after the date of the order fo relief . . . then such lease

is deemed rejected, and the trustee shall immediately surrender

such nonresidential real property to the lessor.” 11 U.S.C. §

365(d)(4).

 Aff’d on other grounds by 182 F.3d 906 (4th Cir. 1999). 8

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bankruptcy court disagreed because “the lessor, by its actions

cannot waive the right of the Trustee.” Id. In support of this

conclusion, the bankruptcy court cited § 365(d)(4), and stated,

“the statute provides the right to the Trustee, and no other

party, to assume or reject.” Id. Affordable Efficiencies did

not hold that a creditor / plan proponent cannot assume an

executory contract between it and the debtor in possession, it

merely held that the lessor was not estopped from arguing that

the unexpired lease at issue was automatically rejected.

Continental Country Club, Inc. v. Burr (In re Continental

Country Club, Inc.) did hold that only a trustee or debtor in

possession could assume or reject an executory contract, but the

bankruptcy court came to that conclusion without any analysis,

and the holding was one of two alternate, independent holdings. 

114 B.R. 763, 765-67 (Bankr. M.D. Fla. 1990).

Likewise, in In re: Valley View Shopping Center, L.P., the

bankruptcy court held, without analysis, that a creditor / plan

proponent could not require a debtor to assume an unexpired

lease. 260 B.R. 10, 39 (Bankr. D. Kan. 2001). Also, as in Burr,

the holding was one of two alternate, independent holdings. See

id. at 39-40.

On the other hand, Wild Waves relies on In re Dynamic

Tooling Systems, Inc., which holds that “a creditor’s plan

proponent may provide for an estate representative to assume or

7

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reject an executory contract.” 349 B.R. 847, 852 (Bankr. D. Kan.

2006). The bankruptcy court explained:

here, a creditor has filed a plan that materially

complies with the mandatory requirements of § 1123(a)

and contains some of the discretionary provisions

permitted by § 1123(b). If, as [the opposition] seems

to say, a creditor-proponent could not provide in a

plan for a plan representative to assume or reject

executory contracts, the practical results would be

nonsensical. Section 1123(b)(2) would have no meaning

in connection with creditors’ plans. A creditor

proponent would either have to rely upon the debtor,

its obvious adversary, to reject any unfavorable or

burdensome contracts or the creditor would need to

seek the appointment of a trustee in the case,

triggering an additional layer of administrative

expense and effort in order to propose a liquidation

or other alternative to what the debtor has offered

the creditor body. The tactical value of a creditor’s

right to file a plan under § 1121 would be diminished.

Id. at 853. 

9

 The text of 11 U.S.C. § 1142, governing “[i]mplementation 9

of [the] plan,” provides further contextual support for Dynamic

Tooling’s conclusion. That section provides, “(a) . . . the

debtor . . . shall carry out the plan and shall comply with any

orders of the court. (b) The court may direct the debtor . . .

to execute or deliver . . . any instrument required to effect a

transfer of property dealt with by a confirmed plan . . . that is

necessary for the consummation of the plan.” § 1142(a)-(b). 

Collier on Bankruptcy explains: 

Section 1142(a) directs the debtor to carry out the terms

of the confirmed plan. . . . While these provisions are

arguably superfluous in light of the statement in section

1141(a) that the plan binds the debtor, any entity

issuing securities under the plan, and any entity

acquiring property under the plan, section 1142(a) makes

clear the legal obligation of the debtor to carry out the

terms of the confirmed plan and obviates the need for the

court to specifically direct the debtor to do so. This

clear statement of the debtor’s obligation is

particularly helpful in those cases where the debtor was

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The bankruptcy court went on to implicitly reject the

argument that Nickels asserts here: that § 1123(b)(2), by

referencing § 365, expressly limits the power of assumption to

the trustee and debtor in possession. According to the Dynamic

Tooling court, “[s]ection 1123(b)(2)’s language that subjects

contract assumption or rejection to § 365 insures that the court

has the opportunity to approve the proposed assumption or

rejection.” 349 B.R. at 853.

The Court finds Dynamic Tooling’s reasoning persuasive and

adopts it, just as the Bankruptcy Court did. Accordingly, this 10

Court holds that Wild Waves’ Plan does not violate § 1123(b)(2). 

The Bankruptcy Court’s decision on this issue will be affirmed.

B.

Next, Nickels argues that the Bankruptcy Court erred in

concluding that the Sale Agreement contemplated a reduction of

not the plan proponent. . . . 

Section 1142(b) empowers the court to direct the debtor

. . . to execute or deliver . . . any instrument required

to effect a transfer of property dealt with by a

confirmed plan. . . . 

8-1142 Collier on Bankruptcy ¶¶ 1142.02 - 1142.03 (emphasis

added). Thus, § 1142 provides a clear statutory directive that

the debtor must comply with a party in interest’s confirmed plan-

- and thus must assume or reject an executory contract-- even if

it would not do so if its own plan were confirmed.

 See In re: Nickels Midway Pier, LLC, 2010 Bankr. LEXIS 10

1642 at *23-28 (Bankr. D.N.J. 2010).

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the original $5.5 million purchase price in the event of a

partial, but not total, destruction of the Pier.11

Alternatively, Nickels argues that even if reduction of the

purchase price was proper, the Bankruptcy Court’s method for

calculating the reduced purchase price was incorrect. The Court

addresses each argument in turn.

(1)

With respect to the purchase price issue, the relevant

provisions of the Sale Agreement provide:

12. Risk of Loss

(a) The risk of loss or damage to the property by

fire or otherwise, excepting ordinary wear and

tear, is on the Seller until the closing. If

damage by fire shall exceed ten percent (10%) of

the purchase price, Buyer may cancel this

Agreement.

(b) Until Closing, Seller shall add Buyer as an

additional insured under its Property Damage

Policy . . .

. . .

21. General

. . .

(d) Buyer reserves the right, at its sole discretion,

to purchase the property irrespective of any

breach of this Agreement by Seller, any failure

of Seller to perform any of its duties or

 As noted in various other opinions, a fire on the Pier 11

destroyed the Castle and Dungeon amusement attraction, the

largest income producing structure on the Pier.

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obligations under the agreement, any defect in

title or any environmental or other deficiency in

the property.

(e) In the event of a fire that results in total

destruction of the structures on the property,

Buyer shall have the right to purchase the

property at the value allocated to the real

estate in Paragraph 2(f).12

The issue is: what was the parties’ intent as to Wild Waves’

contractual “remedies” in the event of damage to more than 10%,

but less than 100%, of the structures on the Pier? Nickels

argues that Wild Waves has two options under the contract: cancel

the Agreement pursuant to paragraph 12(a), or pay the entire $5.5

million purchase price. Wild Waves argues, and the Bankruptcy

Court held, that the contract gives Wild Waves the right to

purchase the property at a reduced price. 

The Court concludes that the Bankruptcy Court did not err. 

Nickels’ argument cannot be reconciled with Paragraph 21(e),

which provides that in the event of 100% destruction of the

structures (i.e., more than 10% damage), Wild Waves shall have a

remedy other than cancellation or purchase at the full contract

price, namely, purchase at a reduced price. Stated another way,

considering all the possible outcomes in the event of damage,

Nickels’ proposed interpretation of the contract would yield an

anomalous result. According to Nickels, Wild Waves agreed to pay

 The Sale Agreement contains no Paragraph 2(f); Paragraph 12

2(e) values the real estate at $ 2 million.

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the full purchase price even if more than 50% of the structures

were damaged, so long as the damage was not 100%, in which case

Wild Waves would then pay for the land only. 

The Court finds the Bankruptcy Court’s approach to

interpreting the parties’ agreement to be entirely consistent

with New Jersey law regarding construction of real estate

contracts:

The general purpose of the agreement is to be

considered in ascertaining the sense of particular

terms. The design of the parties to a written

contract is to be collected from the instrument as an

entirety. And the writing is to have a reasonable

construction. Disproportionate emphasis upon a single

provision does not serve the purpose of

interpretation. Words, phrases and clauses are not to

be isolated but related to the context and the

contractual scheme as a whole, and given the meaning

that comports with the probable intention. The

literal sense of the terms may be qualified by the

context. The significance of a particular part of the

writing is determined by a consideration of all its

parts. It is the revealed intention that is to be

effectuated. In a word, the standard of

interpretation is the meaning that would be attached

to the integration by a reasonably intelligent person. 

And, in the quest for the common design, the situation

of the parties, the attendant circumstances, and the

objects they were thereby striving to attain, are to

be regarded.

Coolidge & Sickler v. Regn, 7 N.J. 93, 99 (1951)(internal

citation and quotation omitted)(emphasis added).

In this case the Bankruptcy Court considered the entire Sale

Agreement, as well as the “situation of the parties [and] the

attendant circumstances,” to give the contract a “reasonable

construction.” Id. The “practical,” id.-- and in this Court’s

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view, correct-- result was a holding that the parties intended

Wild Waves to have the right to purchase the Pier at a reduced

price.

(2)

The Bankruptcy Court calculated the reduced price by adding

the value of the remaining improvements on the Pier to the value

of the land (i.e., $2 million according to the Sale Agreement),

thereby arriving at a purchase price of approximately $3.06

million.

Nickels argues that the Bankruptcy Court should have used

the 2009 fair market value-- which Wild Waves’ own expert stated

was $5 million-- as the purchase price. But the Court agrees

with Wild Waves that using the fair market value does not

appropriately take into account the fact that Nickels retained $3

million of insurance proceeds after the fire. Wild Waves argues,

and this Court agrees, it would be unreasonable (and therefore

not the probable intention of the parties) to allow Nickels to

recover a total of approximately $8.5 million (the Sale

Agreement’s purchase price of $5.5 million plus the insurance

proceeds), while in exchange, Wild Waves would own the Pier

without its largest income producing structure (the Castle and

Dungeon).

On the other hand, the Bankruptcy Court’s method of

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calculation does, in effect, account for Nickels’ receipt of the

insurance proceeds. By adding the value of the real estate ($2

million per paragraph 12(e)) to the value of the remaining

structures, Wild Waves pays for what it receives (the Pier and

the remaining structures), while Nickels receives / retains that

to which it is entitled (the reduced purchase price and the

insurance proceeds). As both the Court and Wild Waves observed

at oral argument, such an approach is entirely consistent with

Paragraph 12(a) of the Sale Agreement which places the risk of

loss on Nickels until closing.13

The Court holds that the Bankruptcy Court’s method for

calculating the reduced purchase price is supported by a

reasonable interpretation of the Sale Agreement. The Bankruptcy

Court’s decision in that regard will be affirmed. 

 At common law in New Jersey, the doctrine of equitable 13

conversion applies; i.e., upon execution of a contract for the

sale of real estate, the buyer assumes the risk of any loss that

may occur before title passes. Coolidge & Sickler v. Regn, 7

N.J. 93 (1951). However, the parties to the contract may

expressly provide to the contrary in their sale agreement, id.,

as Nickels and Wild Waves did in this case.

Reducing the purchase price is the logical result of the

parties’ agreement to place the risk of loss on Nickels. If

there were no reduction of the purchase price upon the occurrence

of a loss, there would be no “risk” to assume-- Nickels would be

entitled to the full contract price even in the event of a loss. 

Because Nickels had the risk of loss, it had the insurable

interest, and was thus entitled to the insurance proceeds.

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C.

Nickels also argues that the Bankruptcy Court erred in

concluding that the Nickels Brothers were unimpaired under the

Bankruptcy Code, and therefore not entitled to vote on Wild

Waves’ Plan.

Section 1124 provides, “a class of claims or interests is

impaired unless, with respect to each claim or interest of such

class, the plan-- (1) leaves unaltered the legal, equitable and

contractual rights to which such claim or interest entitles the

holder of such claim or interest.” 11 U.S.C. § 1124(1). “Under

11 U.S.C. § 1124(1), the presumption of impairment is overcome

only if the plan leaves unaltered the [interest holder’s] legal

equitable, and contractual rights.” In re PPI Enterprises, 324

F.3d 197, 203 (3d Cir. 2003) (internal citation and quotation

omitted).

Nickels does not dispute that the Nickels Brothers “will

retain their equity interests and will receive a distribution in

the event there are funds available from the liquidation of the

Debtor’s assets after payment of all creditors.” (Nickels’

Brief, p. 20; see also Pa34) But Nickels asserts that the Plan

impairs the Nickels Brothers because it undisputedly provides

that property of the estate will remain property of the estate

rather than revesting in the Debtor, and the Plan Administrator

will manage the estate. While the Plan does provide that the

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Nickels Brothers will continue the “management of the Debtor’s

operations” (Pa37), Nickels asserts that as a practical matter,

there will be no operations of the Debtor post-confirmation.

The “impairments” Nickels asserts the Plan imposes do not

alter the Nickels Brothers’ “legal, equitable [or] contractual

rights,” 11 U.S.C. § 1124(1), as equity holders. Therefore, the

Bankruptcy Court did not err in concluding that the Nickels

Brothers were unimpaired under the Plan. The Bankruptcy Court’s

holding in this regard will be affirmed.

D.

Lastly, Nickels argues that the Plan violates 11 U.S.C. §

1122 by placing Wild Waves in a class of its own (Class 5). 

According to Nickels, Wild Waves is merely an unsecured creditor

that belongs in the class consisting of all other general

unsecured creditors (Class 4).

The statute provides, “a plan may place a claim or an

interest in a particular class only if such claim or interest is

substantially similar to the other claims or interests of such

class.” 11 U.S.C. § 1122(a).

The plain language of § 1122 only requires similarity of

claims within a given class. As Wild Waves is the only creditor

in its class, it cannot be dissimilar from any of the other class

members because there are none. Nor does § 1122 require that

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similar claims be placed in the same class; the use of “may”

clearly indicates that grouping of similar claims is permissive,

not mandatory. Thus § 1122 also does not require that Wild Waves

be placed in any of the other classes of the Plan. Section 1122

merely states that if Wild Waves is placed in a class with other

creditors, Wild Waves’ claim must be “substantially similar” to

the other creditors’ claims.

Indeed, in considering the language of the statute, the

Third Circuit has held, “we agree with the general view which

permits the grouping of similar claims in different classes,” but

added that, “classification of the claims or interests must be

reasonable;” not “arbitrary.” In re: Jersey City Medical Center,

817 F.2d 1055, 1061 (3d Cir. 1987). The Court explained that

without a reasonableness requirement, a plan proponent could

improperly gerrymander classes:

There must be some limit on a debtor’s power to

classify creditors in such a manner to assure that at

least one class of impaired creditors will vote for

the plan and make it eligible for cram down

consideration by the court. The potential for abuse

would be significant otherwise. Unless there is some

requirement of keeping similar claims together,

nothing would stand in the way of a debtor seeking out

a few impaired creditors (or even one such creditor)

who will vote for the plan and placing them in their

own class. 

In re: Jersey City Medical Center, 817 F.2d at 1061 (internal

citation and quotations omitted); see also John Hancock Mutual

Life Insurance Co. v. Route 37 Business Park Associates, 987 F.2d

17

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154, 158 (3d Cir. 1993) (“the Code was not meant to allow a

debtor complete freedom to place substantially similar claims in

separate classes. The critical confirmation requirements set out

in Section 1129(a)(8) (acceptance by all impaired classes) and

Section 1129(a)(10) (acceptance by at least one impaired class in

the event of a ‘cram down’) would be seriously undermined if a

debtor could gerrymander classes.”). 

Thus, the issue is whether Wild Waves reasonably placed

itself in a class of its own. The Bankruptcy Court concluded the

placement was reasonable, observing, “Wild Waves has agreed to

subordinate its unsecured claim and receive payment after the

unsecured creditors of Class 4 and the Plan Administrator Loan

are paid in full.” 2010 Bankr. LEXIS 1642 at *23. It also

concluded that Wild Waves had not “creat[ed] multiple classes to

mold the vote.” Id.

This Court agrees with the Bankruptcy Court’s conclusions. 

The critical difference between this case and John Hancock, where

the classification scheme was held unreasonable, is that, as set

forth above, Wild Waves has consented to subordinate its claim to

all other creditors. Contrast John Hancock Mutual Life Insurance

Co., 987 F.2d at 156 (“Class Three was made up of all the

unsecured claims other than Hancock’s. . . . Class Four consisted

of Hancock’s unsecured claim. . . . The plan called for identical

payments on the Class Three and Four claims.”). Thus, placing

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Wild Waves in a separate class was reasonable and not arbitrary. 

Accordingly, the Bankruptcy Court’s decision on this issue will

be affirmed.

IV.

For the reasons set forth above, the Bankruptcy Court’s

Order Confirming Wild Waves’ Third Modified, First Amended Plan

for Liquidation will be affirmed. The Court will enter an

appropriate order.

Dated: April 25, 2011 s/ Joseph E. Irenas 

JOSEPH E. IRENAS, S.U.S.D.J.

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