REAL ESTATE PURCHASE AND SALE AGREEMENT
(WITH EARNEST MONEY PROVISION)
THIS REAL ESTATE PURCHASE AND SALE AGREEMENT (the “Agreement”) is
made and entered into this _____ day of ________________, 2012, by and between PLUM
CREEK TIMBERLANDS, L.P., a Delaware limited partnership, whose address is 999 Third
Avenue, Suite 4300, Seattle, Washington 98104, hereinafter called the “Seller,” and
________________________, a ________________, whose address is
______________________, hereinafter called the “Purchaser.”
In consideration of the mutual covenants set forth in this Agreement, and other good and
valuable consideration, the receipt and sufficiency of which are acknowledged, and subject to all
terms of this Agreement, Seller agrees to sell to the Purchaser and the Purchaser agrees to
purchase from the Seller that certain real property situated in Josephine County, State of Oregon,
legally described on Exhibit “A” attached hereto and incorporated herein by this reference as
though fully set forth (the “Property”).
The Property will be conveyed subject to an easement in the public for any public roads
heretofore laid out or established and now existing over, along or across any portion of the real
estate; and to all additional easements, reservations, restrictions, encumbrances and water rights,
if any, apparent or of record.
The parties agree to the following terms and conditions:
1. Purchase Price and Terms. The purchase price for the Property is
______________________________and 00/100 U.S. Dollars ($______________) (“Purchase
Price”). At Closing (defined below), Purchaser shall pay Seller in cash or by wire transfer, or
otherwise immediately available federal funds the entire Purchase Price, of which the Earnest
Money receipted herein is a part.
2. Earnest Money Receipt. Purchaser hereby deposits with the escrow described in
Paragraph 3 herein, the amount of _________________________and 00/100 U.S. Dollars
($______________), in cash, paid or delivered as earnest money, which amount shall be applied
to the Purchase Price for the Property at Closing (“Earnest Money”).
3. Time and Place of Closing; Escrow. Upon mutual execution, the parties shall
deposit a copy of this Agreement, and such other documents and monies, including Earnest
Money, as are required hereby into escrow established with Stewart Title Guaranty Company,
1420 Fifth Avenue, Suite 500, Seattle, Washington 98101 (the “Escrow Agent”). As referred to
in this Agreement, closing shall be on or before October 15, 2012 (“Closing Date”). Closing
shall take place at the offices of the Escrow Agent. Closing shall mean the point at which all
documentation and monies required to close the transaction have been delivered to escrow,
including signed escrow instructions (“Closing”).
4. Condition of Title and Title Insurance.
(a) As of the Closing Date, title is to be free of all encumbrances or defects
except those listed in the preliminary commitment for title insurance deemed to be permitted
exceptions as described below. Monetary encumbrances will be discharged by Seller and shall
be paid from Seller’s funds at the Closing Date. The following shall not be deemed
encumbrances or defects:
(i) liens for taxes, assessments and other governmental charges which
are not yet due and payable as of the Closing;
(ii) all land use (including environmental and wetlands), building and
zoning laws, regulations, codes and ordinances affecting the Property;
(iii) any rights of the United States of America, the State in which the
Property is located or others in the use and continuous flow of any brooks,
streams or other natural water courses or water bodies within, crossing or abutting
the Property, including, without limitation, riparian rights and navigational
(iv) title to that portion of the Property, if any, lying below the mean
high water mark of abutting tidal waters;
(v) all easements, rights-of-way, water rights, licenses and other such
similar encumbrances apparent or of record;
(vi) all existing public and private roads and streets and all railroad and
utility lines, pipelines, service lines and facilities;
(vii) all encroachments, overlaps, boundary line disputes, shortages in
area, persons in possession, cemeteries and burial grounds and other matters not
of record which would be disclosed by an accurate survey or inspection of the
(viii) prior reservations or conveyances of mineral rights or mineral
leases of every kind and character; and
(ix) any loss or claim due to lack of access to any portion of the
(b) Seller shall cause the Escrow Agent to provide to Purchaser a standard
form Owner’s or Purchaser’s Policy of Title Insurance in the amount of the Purchase Price.
Purchaser hereby acknowledges receipt of Ticor Title Company of Oregon’s commitment for
title insurance dated May 29, 2012 (the “Title Commitment”). Purchaser has reviewed the Title
Commitment and accepts the title to the Property as set forth in the Title Commitment. All
matters set forth in the Title Commitment and those that are listed under Paragraph 4(a) above
shall be deemed to be permitted exceptions to the status of Seller’s title (the “Permitted
(c) The Seller agrees, upon receiving full payment of the Purchase Price in the
manner above specified, to execute and deliver to Purchaser a Special Warranty Deed (“Deed”)
to the Property, substantially in the form attached hereto as Exhibit “B”, excepting any part
thereof hereafter taken for public use. The Deed shall be free of encumbrances or defects except
(i) such encumbrances or defects that may attach after the Closing Date through any person other
than the Seller, and (ii) the Permitted Exceptions.
5. Inspection; Condition of Property; Subsequent Acts.
(a) The Purchaser acknowledges that full inspection of the Property has been
made by the Purchaser and that neither the Seller nor its agents, officers, employees or assigns
shall be held to any covenant respecting the condition of the Property or any improvements
thereon nor shall the Purchaser or Seller or the assigns of either be held to any covenant or
agreement for alterations, improvements or repairs unless the covenant or agreement relied on is
contained herein or is in writing and attached to and made a part of this Agreement.
(b) Purchaser specifically acknowledges and agrees that (1) Seller, except as
otherwise specifically set forth herein, does not make any representations or warranties of any
kind whatsoever, either express or implied, with respect to and shall have no liability for the
Property (or any related matters), and (2) the Property is sold to Purchaser in an “AS IS” and
“WITH ALL FAULTS” condition as of the date of closing, including, without limitation, the
stability of soils, the condition of the Property or any building structure or improvements
thereon, suitability, habitability, merchantability or fitness of the Property for any construction or
development, or for the Purchaser’s intended use, encroachment or boundary questions,
compliance with any laws, drainage, availability or adequacy of water, sewer or other utilities,
zoning, access and similar matters. Purchaser hereby waives any and all claims, which the
Purchaser has or may have against the Seller with respect to the condition of the Property. Seller
and Purchaser acknowledge that this disclaimer has been specifically negotiated. The provisions
of this Paragraph shall survive Closing. At Closing, Purchaser assumes the responsibility and
risks of all defects and conditions, including such defects and conditions, if any, that cannot be
observed by casual inspection.
(c) Notwithstanding anything in this Agreement to the contrary, Seller
warrants and represents that (i) to Seller’s “actual knowledge” (as defined below) (without any
requirement of further investigation), the Property has not at any time been used for the
generation, transportation, management, handling, treatment, storage, manufacture, emission
disposal, or deposit of any hazardous substances or fill or other material containing hazardous
substances in excess of levels permitted under applicable laws; and (ii) to Seller’s “actual
knowledge” (without any requirement of further investigation), there are no underground storage
tanks on the Property. Purchaser releases Seller from all costs, losses, liabilities, obligations and
claims, of any nature whatsoever, known and unknown, that Purchaser may have against Seller
or that may arise in the future based in whole or in part upon (a) Seller’s failure to comply with
any applicable environmental laws, or (b) the presence, release or disposal of any hazardous
substance, solid waste, or any other environmental contamination on, within, or from the
Property before, as of, or after the date of closing. As used in this Paragraph, the term
“applicable environmental laws” shall mean all state, federal, or local laws, statutes, ordinances,
rules, regulations or orders pertaining to health or the environment, including, without limitation,
the Comprehensive Environmental Response, Compensation, and Liability Act of 1980
(“CERCLA”) and the Resource Conservation and Recovery Act of 1976 (“RCRA”), as each may
be amended from time to time. As used herein, the terms “hazardous substance” and “release”
have the meanings specified in CERCLA, and the terms “solid waste” and “disposal” (or
“disposed”) have the meanings specified in RCRA. If either CERCLA or RCRA is amended to
broaden the meaning of any term defined thereby, the broader meaning shall apply to this
Paragraph 5(c) after the effective date of the amendment. Moreover, to the extent that Oregon
law establishes a meaning for “hazardous substance,” “release,” “solid waste,” or “disposal” that
is broader than that specified in either CERCLA or RCRA, the broader meaning shall apply. In
addition, this Paragraph 5(c) shall survive the date of closing for all purposes and shall not be
deemed to have merged into any of the documents executed or delivered at closing. For
purposes of this Paragraph, “actual knowledge” shall mean the actual knowledge of Bill Frings,
the Resources Manager for Seller’s Oregon timberlands.
(d) Except as hereinafter provided, between the date of this Agreement and
the Closing Date, Seller shall not remove nor permit the removal of any timber, harvestable crop,
improvements, or other items from the Property, nor encumber the Property without the prior
written consent of Purchaser. The foregoing notwithstanding, Seller is conducting an active
harvesting operation on portions of Section 6, Township 35 South, Range 6 West, Josephine
County, Oregon. A map of the harvest area is attached hereto as Exhibit “C” and incorporated
herein by this reference as though fully set forth. Seller shall complete its harvesting operations
prior to Closing. Seller shall be responsible to burn the slash resulting from such harvesting
operation by not later than December 31, 2012, and Purchaser shall, at Closing, execute and
deliver a right of entry permit with conditions standard in the industry that will allow Seller
access to the harvest area to burn the slash. At Closing, Purchaser shall assume Seller’s
obligation to replant the area harvested pursuant to applicable laws, rules and regulations of the
State of Oregon. Such replanting must be completed within two years of Closing. Purchaser
shall indemnify and hold Seller harmless from all suits, actions, losses and costs, including
without limitation reasonable attorney’s fees, that Seller incurs as the result of Purchaser’s failure
to replant the Property as provided herein. The terms of this Paragraph 5(d) shall survive
Closing and recording of the Deed.
6. Risk of Loss. In the event of a material loss or damage to the Property, which
occurs prior to the Closing Date, or if any material portion of the Property has been taken by
condemnation or eminent domain proceedings (or deed in lieu thereof), Purchaser may, at its
option, elect to terminate this Agreement if Purchaser notifies Seller in writing of its election
within fifteen (15) days from the date the Purchaser receives notice of the casualty or
condemnation or Purchaser shall consummate the transaction and receive an assignment of all
proceeds of insurance or condemnation awards attributable to such damage or taking, less
reimbursement to Seller of the reasonable costs it incurred in procuring such proceeds or awards.
For purposes of this Paragraph, the term “material loss” shall mean a diminution in value to the
Property of at least $___________. At Closing, the Purchaser assumes all hazards of damage to
or destruction of the Property or improvements hereafter placed thereon, and of the taking of the
Property or any part thereof for public use; and agrees that no such damage, destruction or taking
shall constitute a failure of consideration.
7.1 Closing Costs.
(a) Seller shall pay the following costs and expenses in connection
with this transaction:
(i) Seller’s attorney fees, if any;
(ii) All special assessment installments and local improvement
district assessment installments against the Property that is
due prior to the Closing Date;
(iii) Title insurance premium attributable to standard coverage;
(iv) One-half of escrow fees; and
(v) Commission payable to OROP, Inc.
(b) Purchaser shall pay the following costs and expenses in connection
with this transaction:
(i) Purchaser’s attorney fees, if any;
(ii) One-half of escrow fees;
(iii) Recording fee for Deed;
(iv) Title insurance premium attributable to extended coverage,
if any, or any endorsements, if any.
7.2. Closing Instruments.
(a) Seller shall deliver to Escrow Agent the following on or before the
(ii) A standard coverage Policy of Title Insurance issued by
Stewart Title Guaranty Company insuring Purchaser’s
interest in the Property in the amount of the Purchase Price
and containing no exceptions other than Permitted
(iii) All other usual and customary documents required to
(b) Purchaser shall deliver to Escrow Agent the Purchase Price
required pursuant to Paragraph 1 above no later than 11:00 a.m. on the Closing Date, and
all other usual and customary documents required to Close.
7.3 Pro Rations. Property taxes for the current year, assessments, rents, water
and other utilities constituting liens shall be pro-rated as of the Closing Date.
8. Commission. Seller agrees to pay to OROP, Inc. a commission out of its
proceeds at Closing. Purchaser and Seller each represent and warrant to the other that no other
broker, agent or finder, licensed or otherwise has been engaged by it, respectively, in connection
with the transaction contemplated by this Agreement. In the event of any such claim for
broker’s, agent’s or finder’s fee or commission in connection with the negotiation, execution or
consummation of this transaction, the party upon whose alleged statement, representation or
agreement such claim or liability arises shall indemnify, hold harmless and defend the other
party from and against such claim and liability, including without limitation, reasonable
attorney’s fees and court costs. Purchaser and Seller acknowledge that the representations and
warranties contained in this Section shall survive the Closing.
9. Possession. Unless a different date is provided for herein, the Purchaser, subject
to the easements, encumbrances, exceptions, restrictions, and reservations set forth above, shall
be entitled to possession of the Property on the Closing Date.
10. Default. If either party defaults (that is, fails to perform the acts required of it) in
its contractual performance herein, the non-defaulting party shall be entitled to exercise all rights
and remedies available to it at law or equity, including but not limited to specific performance
pursuant to the terms of this Agreement, damages or rescission; provided, however, that neither
party shall be liable to the other for consequential, incidental, indirect or special damages arising
out of this Agreement or any breach thereof, including but not limited to loss of use, lost profits
or revenue, whether or not such loss or damage is based on contract, warranty, negligence or
otherwise. If the non-defaulting party seeking damages or rescission is the Purchaser, the
Earnest Money shall be refunded.
Purchaser acknowledges that if Purchaser fails to purchase the Property so as to
constitute a default by Purchaser hereunder, for any reason other than the breach of Seller, Seller
shall be entitled to compensation for the detriment resulting from the removal of the Property
from the market, and entering into this Agreement rather than selling to other potential
purchasers. Therefore, in the event of Purchaser’s failure to purchase the Property so as to
constitute Purchaser’s default hereunder, Seller shall have, at Seller’s option, the right to receive
and retain the Earnest Money, which sum shall represent liquidated damages for breach and not a
penalty therefore. The parties acknowledge and agree that the Earnest Money is presently a
reasonable estimate of Seller’s damages, considering all of the circumstances existing on the date
of this Agreement, including the relationship of the sum to the range of harm to Seller that
reasonably could be anticipated and the expectation that proof of actual damages would be
impractical or extremely difficult. Factors taken into consideration by the parties include Seller’s
loss of opportunity during the pendency of this Agreement to sell the Property to others on better
terms, or at a higher price; Seller’s risk of loss of a bargain if the market turns negative; Seller’s
damages related to its continuing obligations for the payment of taxes and insurance; and Seller’s
loss of earnings on the amount of the purchase price resulting from a delay in closing. Purchaser
hereby waives all rights or benefits of any law, rule or regulation, now or hereafter existing,
which would allow Purchaser, following Purchaser’s failure to purchase the Property so as to
constitute Purchaser’s default, to claim a refund of the Earnest Money as unearned earnest
money, a penalty or for any other purpose.
11. Attorneys’ Fees. If either party hereto is required to retain an attorney to enforce
any provision of this Agreement, whether or not a legal proceeding is commenced, the
substantially prevailing party shall be entitled to reasonable attorneys’ fees regardless of whether
at trial, on appeal, in any bankruptcy proceeding, in arbitration or without resort to suit.
12. Governing Law. This Agreement shall be interpreted, construed and enforced
according to the laws of the State of Oregon.
13. Notices. Subject to the requirements of any applicable statute, any notices
required or permitted by law or under this Agreement shall be in writing and shall be (i)
personally delivered, (ii) sent by first class certified or registered mail, return receipt requested,
with postage prepaid, (iii) dispatched by facsimile transmission (accompanied with reasonable
evidence of receipt of transmission and with a confirmation copy mailed no later than the day
after transmission) to the parties’ addresses set forth above, or (iv) sent by electronic (email)
transmission. Either party may change such address for notice. All notices which are so
addressed and paid for shall be deemed effective when personally delivered, or, if mailed, on the
earlier of receipt or two (2) days after deposit thereof in the U.S. mail; if sent via facsimile, the
date upon which such facsimile was transmitted and confirmation of such transmission has been
received; or if sent via email, the date upon which such email was transmitted. Notices shall be
addressed as follows:
If to Seller: Plum Creek Timberlands, L.P.
500-12th Avenue West
Columbia Falls, MT 59912
Attn: David Greer
With a Copy to: Plum Creek Timberlands, L.P.
999 Third Avenue, Suite 4300
Seattle, WA 98104
Attn: Sheri L. Ward
Facsimile: (206) 467-3799
If to Purchaser: __________________________
14. Time of Performance. Time is of the essence of this Agreement and of all acts
required to be done and performed by the parties hereto, including, but not limited to, the proper
tender of each of the sums required by the terms hereof to be paid.
15. Paragraph Headings. The word or words appearing at the commencement of
paragraphs and subparagraphs of this Agreement are included only as a guide to the contents
thereof and are not to be considered as controlling, enlarging or restricting the language or
meaning of those paragraphs or subparagraphs.
16. Legal Relationships. The parties to this Agreement execute the same solely as a
seller and a purchaser. No partnership, joint venture or joint undertaking shall be construed from
these presents, and except as herein specifically provided, neither party shall have the right to
make any representation for, act on behalf of, or be liable for the debts of the other. All terms,
covenants and conditions to be observed and performed by either of the parties hereto shall be
joint and several if entered into by more than one person on behalf of such party, and a default by
any one or more of such persons shall be deemed a default on the part of the party with whom
said person or persons are identified. No third party is intended to benefit by this Agreement.
Any married person executing this Agreement hereby pledges his or her separate property and
such person’s and his or her spouse’s marital communities in satisfaction hereof.
17. Assignment; Successors. Purchaser may not sell, transfer, assign, pledge or
encumber its interest in this Agreement without the prior written consent of Seller, which
consent may be withheld at Seller’s sole discretion. A purported sale, transfer, assignment,
pledge or encumbrance shall be null and void and of no force or effect. Subject to the
restrictions contained herein, the rights and obligations of the Seller and Purchaser shall inure to
the benefit of and be binding upon their respective estates, heirs, executors administrators,
successors, successors-in-trust and assigns.
18. Entire Agreement. All understandings and agreements previously existing
between the parties, if any, are merged into this Agreement, which alone fully and completely
expresses their agreement, and the same is entered into after full investigation, neither party
relying upon any statement or representation made by the other not embodied herein. This
Agreement may be modified only by a written amendment executed by all parties.
19. Interpretation. This Agreement has been reviewed by both parties and each party
has had the opportunity to consult with independent counsel with respect to the terms hereof and
has done so to the extent that such party desired. No stricter construction or interpretation of the
terms hereof shall be applied against either party as the drafter hereof.
20. Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed to be an original instrument. All such counterparts together shall constitute a
fully executed Agreement.
21. Survival. All representations and warranties set forth in this Agreement and all
provisions of this Agreement, the full performance of which is not required prior to Closing,
shall survive closing and shall not be merged in any deed and shall be fully enforceable
22. Severability. If a court holds any provision of this Agreement to be illegal,
invalid or unenforceable, the remaining provisions shall remain in full force and effect and the
parties will amend this Agreement to give effect to the stricken clause to the maximum extent
23. Exchange. Each party at its election, may assign its rights and obligations under
this Agreement in order to effectuate a like-kind exchange of property under Section 1031 of the
Internal Revenue Code 1986 as amended. Each party agrees to assist and cooperate with the
other party in any such exchange at no additional cost, expense or liability to the party providing
assistance. Purchaser and Seller further agree to execute any and all documents as are
reasonably necessary in connection with any such exchange.
24. Use of Name. Purchaser acknowledges and agrees that the name “Plum Creek”
(or any variation thereof) shall not be used by Purchaser, or its assigns, in any way or on any
activities conducted by or on behalf of Purchaser, including advertisements.
IN WITNESS WHEREOF, the parties hereto have executed this instrument in duplicate
the day and year first above written.
PLUM CREEK TIMBERLANDS, L.P.
By Plum Creek Timber I, L.L.C
Its General Partner Attest:
By ___________________________ By __________________________
Name ___________________________ Name __________________________
Title ___________________________ Title __________________________
[insert legal descriptions from title commitment]
Form of Deed
AFTER RECORDING RETURN TO:
Stewart Title Guaranty Company
Attn: Natalie Evans
1420 Fifth Avenue, Suite 500
Seattle, WA 98101
File No. _____________________________
TAX STATEMENTS SHALL BE SENT TO:
BARGAIN AND SALE DEED
PLUM CREEK TIMBERLANDS, L.P., a Delaware limited partnership, whose address is
999 Third Avenue, Suite 4300, Seattle, Washington 98104 (“Grantor”), conveys to
____________________________, a _____________________________, whose address is
______________________________________________________(“Grantee”), the following
described real property located in Josephine County, Oregon, free of encumbrances created or
suffered by the Grantor except as specifically set forth herein:
This conveyance is made by Grantor and accepted by Grantee subject to the exceptions to title
set forth in Exhibit “A” attached hereto and incorporated herein by this reference. The true
consideration for this conveyance is $_____________________________.
BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON
TRANSFERRING FEE TITLE SHOULD INQUIRE ABOUT THE PERSON’S RIGHTS, IF
ANY, UNDER ORS 195.300, 195.301 AND 195.305 TO 195.336 AND SECTIONS 5 TO 11,
CHAPTER 424, OREGON LAWS 2007, AND SECTIONS 2 TO 9 AND 17, CHAPTER 855,
OREGON LAWS 2009. THIS INSTRUMENT DOES NOT ALLOW USE OF THE
PROPERTY DESCRIBED IN THIS INSTRUMENT IN VIOLATION OF APPLICABLE
LAND USE LAWS AND REGULATIONS. BEFORE SIGNING OR ACCEPTING THIS
INSTRUMENT, THE PERSON ACQUIRING FEE TITLE TO THE PROPERTY SHOULD
CHECK WITH THE APPROPRIATE CITY OR COUNTY PLANNING DEPARTMENT TO
VERIFY THAT THE UNIT OF LAND BEING TRANSFERRED IS A LAWFULLY
ESTABLISHED LOT OR PARCEL, AS DEFINED IN ORS 92.010 OR 215.010, TO VERIFY
THE APPROVED USES OF THE LOT OR PARCEL, TO DETERMINE ANY LIMITS ON
LAWSUITS AGAINST FARMING OR FOREST PRACTICES, AS DEFINED IN ORS 30.930,
AND TO INQUIRE ABOUT THE RIGHTS OF NEIGHBORING PROPERTY OWNERS, IF
ANY, UNDER ORS 195.300, 195.301 AND 195.305 TO 195.336 AND SECTIONS 5 TO 11,
CHAPTER 424, OREGON LAWS 2007, AND SECTIONS 2 TO 9 AND 17, CHAPTER 855,
OREGON LAWS 2009.
Executed this ______ day of ______________, 2012.
GRANTOR: PLUM CREEK TIMBERLANDS, L.P.
By Plum Creek Timber I, L.L.C.
Its General Partner
By ____________________________ By ____________________________
Name ____________________________ Name ___________________________
Title ____________________________ Title ___________________________
STATE OF WASHINGTON )
COUNTY OF KING )
On this _____ day of ______________, 2012, before me personally appeared
_________________________________ and Sheri L. Ward, to me known to be the
_________________________________ and the Assistant Secretary, respectively, of Plum
Creek Timber I, L.L.C., general partner of Plum Creek Timberlands, L.P., the limited partnership
that executed the within and foregoing instrument, and acknowledged the said instrument to be
the free and voluntary act and deed of said limited partnership for the uses and purposes therein
mentioned, and on oath stated that they were authorized to execute said instrument on behalf of
the limited partnership and that the seal affixed is the seal of said limited partnership.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year last above written.
Notary Public in and for the
State of Washington
Residing at ___________________
My Commission Expires _________
Printed Name __________________
BARGAIN AND SALE DEED
(i) liens for taxes, assessments and other governmental charges which are not yet due
and payable as of the Closing;
(ii) all land use (including environmental and wetlands), building and zoning laws,
regulations, codes and ordinances affecting the Property;
(iii) any rights of the United States of America, the State in which the Property is
located or others in the use and continuous flow of any brooks, streams or other natural water
courses or water bodies within, crossing or abutting the Property, including, without limitation,
riparian rights and navigational servitudes;
(iv) title to that portion of the Property, if any, lying below the mean high water mark
of abutting tidal waters;
(v) all easements, rights-of-way, licenses and other such similar encumbrances
apparent or of record;
(vi) all existing public and private roads and streets and all railroad and utility lines,
pipelines, service lines and facilities;
(vii) all encroachments, overlaps, boundary line disputes, shortages in area, persons in
possession, cemeteries and burial grounds and other matters not of record which would be
disclosed by an accurate survey or inspection of the Property;
(viii) prior reservations or conveyances of mineral rights or mineral leases of every kind
(ix) any loss or claim due to lack of access to any portion of the Property; and
(x) [list those encumbrances from the title commitment]