HomeMy WebLinkAboutCOM 0218.004 1996-1998 Of CC'1.^.Sel
WAGIvyR WATSON & PETTIT - ~ L ,
Attorneys at Law _ - "
, _ „_~.,n
JAMES A. WAGNER 1493 "
737 Bishop Street, Suite 248G
Grosvenor Center, Mauka Tower
Honol'.:lu, Hawaii 96813
Telephone: (BOB) 533-1872
Attorney for Trustee
John T. Goss
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF HAWAII
In re ) BK NO. 92-00865
(Chapter 11)
HAMAKUA SUGAR COMPANY, INC., a)
Hawaii corporation, ) DATE: December 29, 1995
TIME: 9:30 a.m.
Debtor. ) JUDGE: Lloyd King
TRUSTEE'S APPLICATION TO APPROVE
SECOND OPTION AGREEMENT AND JOINT
ESCROW INSTRUCTIONS WITH ENSERCH; EXHIBIT "A"
JOHN T. GOSS, Trustee of the Bankruptcy Estate of Hamakua
Sugar Company, Inc. ("Trustee"), by and through his undersigned
counsel, hereby submits this Application to approve the Second
Option Agreement and Joint Escrow Instructions ("Second Option
Agreement") with Enserch. In support of this Application, the
Trustee respectfully represents as follows:
1. The Trustee entered into that certain Option
Agreement and Joint Escrow Instructions by and between John T.
Goss, as Trustee, and Enserch Development CorF~c,ration Hamakua, Inc.
("Enserch"), dated as of October 2_, 1993, pursuant to which t4he
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t.38. "Real ProDertv": The Land and Improvements.
1.39. "Recording Office": The Bureau of Conveyances of the State of
Hawaii.
1.40. }Upon entry of the 363 Order, Seller shall
promptly record in the Bureau vfCon'vby~nces of the State of Hawaii a restrictive
covenant and equitable servitude running with the land, in form and content satisfactory
to Buyer, encumbering the Excluded Land, providing substantially that:
A. The development of one or more electric power plants are planned on
TMK (3) 4/52:21 in the approximate location .shown on Exhibit "C". This
document shall terminate and be of no effect 'rf no electric power plant is
under construction by December 31, 1998; otherwise, this document shall
continue effective so long as an electric power plant is under construction
or in operation.
B. Each owner, lessee and occupant of any portion of the Excuded Land,
from time to time, is hereby notified that an electric power plant and
various co-generation industries (businesses using heat from the power
plant) are or will be constructed and operating on a portion of TMK (3)
415221, with possible environmental impacts of heavy truck and
business traffic, odor, dust, smoke, noise or other industrial effects
("Environmental Impacts").
C. Each owner, lessee and occupant of the Excluded Land, from time to
time, accepts such Environmental Impacts, and shall not in legal
proceedings or otherwise, directly or indirectly interfere, or attempt to
interfere, with the construction or operation or the granting of
governmental permits, consents or approvals, for power plant or co-
generation activities and land use.
D. Each owner or lessee of the electric power plant, or of any business
obtaining heat from the electric power plant, shall have the right to obtain
all legal and equitable remedies arising out of any breach of this
document, incuding without limitation, damages, and to enforoe
compliance with this document by obtaining,m without limitation of other
remedies, injunctive relief, and shall be entitled to recover its reasonable
attorney's fees and costs in any action related to this document, these
restrictions or servitudes, in which it is a prevailing party.
1.41. "Rollback Taxes": Any and all taxes, whether described as rollback
taxes, defered taxes, retroactiv°~ taxes, real property taxes, or otherwise, whether
presently owing or to be triggered by Suyer's change from agricuRural use of the Land,
and any and all pr~r~ Ries, interest and other charges imposed under, p n.,uant to or in
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