A federal bankruptcy judge has dealt a significant blow to the ownership of Whitewater Amphitheater, ruling that the popular New Braunfels outdoor concert venue cannot be sold free and clear of contested deed restrictions that strictly govern its concert schedule. The decision rejects an attempt by the venue's owners to strip the property of operating limits through the Chapter 11 process ahead of a court-mandated auction.
In a detailed 27-page opinion, U.S. Bankruptcy Judge Aubrey Thomas denied a motion by owner Kona Coast Venture Ltd. to eliminate the land covenants prior to the sale. The ruling effectively ensures that any prospective buyer will acquire the riverside amphitheater subject to operating constraints, a development that is anticipated to reduce the final price fetched at the upcoming auction.
The financial stakes surrounding the restrictions are already evident in active purchase offers for the real estate. Central Texas businessman Micah Bowen submitted a tiered proposal for the venue, offering $13 million if the property were delivered without the deed covenants, but scaling his bid down to $10 million if the operating limits remain in place.
Whitewater Amphitheater was forced into bankruptcy protection in July, when Kona Coast filed for Chapter 11 relief to halt a scheduled foreclosure initiated by its primary lender, MAV WTW Holdings LLC. In an effort to maximize asset value and attract higher bidding during the reorganization, the debtor asked the bankruptcy court for authorization to wipe away the restrictive covenants.
The disputed covenants place rigid boundaries on entertainment operations at the New Braunfels site. Under the rules, concerts are generally permitted only on Saturday evenings between May and August, with additional allowances for major holiday weekends covering Memorial Day, the Fourth of July, and Labor Day. The covenants bar live performances on other evenings and require that all amplified sound cease promptly at 11:30 p.m.
During a hearing before the bankruptcy court, Kona Coast manager Will Korioth argued that the venue had routinely operated outside these parameters. Korioth testified that the amphitheater had hosted shows on non-Saturday dates with such frequency that the original deed covenants had effectively been abandoned and were no longer legally enforceable under Texas property law.
That position was vigorously contested by SUN NG Whitewater RV LLC, the ownership entity behind Camp Fimfo, an adjacent outdoor camping and recreational vehicle resort. SUN NG asserted that it holds legal rights under the deed restrictions and demanded that the court enforce them to protect its substantial investment in the neighboring property.
SUN NG manager Zachary Bossenbroek testified that more than $100 million has been invested into developing Camp Fimfo, warning that the resort's value and overall commercial appeal would be severely degraded if Whitewater were permitted to host live music events 365 days a year. Bossenbroek emphasized that the resort relies heavily on the schedule and noise limitations established by the covenants.
Judge Thomas concluded that Kona Coast failed to meet the rigorous legal standard required to void the restrictions. In her opinion, Thomas wrote that while the debtor presented evidence showing repeated violations of the calendar limitations, establishing occasional or even regular breaches does not satisfy what Texas law requires to prove that a covenant has been legally abandoned.
Rather than resolving the ultimate enforceability of the covenants, Judge Thomas chose to preserve the status quo. She ruled that any auction sale of the music venue must be conditioned upon the eventual resolution of the dispute through ongoing state court litigation or a separate legal proceeding, ensuring that SUN NG’s property interests remain protected during the ownership transition.
The broader fight over the validity of the deed limits is currently pending in Comal County District Court. Kona Coast initiated that lawsuit in April against both SUN NG and lender MAV WTW Holdings LLC, seeking a state court order declaring the restrictive covenants unenforceable.
Under the bankruptcy ruling, the responsibility for navigating that state litigation will now pass directly to the winning auction bidder. The incoming purchaser will be left to decide whether to continue litigating the Comal County lawsuit or attempt to negotiate a direct resolution with SUN NG regarding the venue's operating hours and seasonal event schedule.
Bossenbroek expressed satisfaction with the bankruptcy court's ruling, stating in an email that the restrictions will stay firmly in place and that any incoming owner will be bound by them. Representatives for Kona Coast, including Korioth and the company’s bankruptcy counsel, did not immediately respond to requests for comment following the decision.
The property now faces a strict timetable to complete its restructuring. Formal bids for Whitewater Amphitheater and its surrounding property parcels are due by September 22, with the bankruptcy auction scheduled to take place on September 28. The winning bidder will be required to finalize and close the acquisition by October 22, or lender MAV will be permitted to proceed with foreclosure on November 3.
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