EXHIBIT
10.1
ASSET PURCHASE
AGREEMENT
This ASSET PURCHASE
AGREEMENT (this “Agreement”) entered into as of this
23rd day of October, 2009, by and among Southwest
Resources, Inc., a Delaware company with a principal address of
3001 Knox Street, Suite 403, Dallas, Texas 75205
(“Buyer”), and Duke Mining Company, a Delaware
company with a principal address of 850 Third Avenue, Suite 1801,
New York, NY 10022 (“Seller”).
BACKGROUND
WHEREAS
, Seller is the owner
and operator of a mining business (the “Business”);
and
WHEREAS
, the Buyer desires to
acquire certain assets and assume certain liabilities from the
Seller relating to the Business; and
NOW,
THEREFORE ,
for and in consideration of the premises and the mutual promises
herein made, and in consideration of the representations,
warranties, and covenants herein contained, the parties agree as
follows.
AGREEMENT
Article
I
Purchase and Sale
of Assets
Section
1.1
Purchase and Sale
of the Purchased Assets . Upon the terms and subject
to the conditions and exceptions contained herein, Seller agrees to
sell to Buyer, and Buyer agrees to purchase from Seller all of the
Purchased Assets. For purposes of this Agreement, the
term “Purchased Assets” shall mean certain of the
assets and rights of the Seller’s, related to the Business as
more fully described below:
(a)
Mine
Assets .
All assets described on Exhibit A hereto (the
“Mine Assets”).
(b)
Contract
Rights .
All rights under any agreements, such as executory contracts,
operating contracts, purchase and sale orders, including, without
limitation, all of Seller’s rights in, to receivables or
under any unfilled customer orders payments relating to the Mine
Assets (collectively, the “Contract
Rights”).
(c)
Permits, Licenses,
Etc .
All permits, licenses, franchises, variances, consents or
authorizations issued by, and all registrations and filings with,
any governmental agency in connection with the Mine Assets to the
extent such permits, licenses, franchises, variances, consents,
authorizations, registrations and filings are assignable.
(d)
Other
Assets .
All catalogs, technical manuals, customer and supplier lists
and records, business goodwill, business and marketing plans,
credit files, personnel files, videotapes, photographs, advertising
literature and other marketing materials and all other books and
records related to the Business.
(e)
Warranties
. All warranties
(express or implied) and similar rights and claims related to the
Mine Assets.
Section 1.2
Lease to
Premises.
Buyer agrees and acknowledges that any
lease arrangements relating to the Business are to be assumed by
Buyer including but not limited to the lease dated November 14,
2008 by and between Premere Resources Corporation and Seller with
respect to a 640 acre mining claim located in San
Juan County, Utah on Utah School
and Institutional Trust Lands Administration , more fully described as Mineral
Claim # 50719, legal description as T29sR22E SL. Sec36
. Buyer hereby agrees and acknowledges that it
has spoken to Ben Campbell and confirmed that Ben Campbell will
recognize the assignment of the Lease and all rights and
obligations thereunder. Upon transfer of
the Purchased Assets to the Buyer as described herein, the Buyer
hereby agrees to be bound by and subject to the terms and
conditions of the Lease as fully and effectively as if the
undersigned had originally executed a counterpart of the Lease
together with the other parties thereto. The undersigned
hereby acknowledges having received and reviewed a copy of the
Lease.
Section
1.3
Representations
and Warranties of Seller . The Buyer is purchasing the
Purchased Assets AS IS and therefore there is no guarantee
of the condition, validity or suitability of any purpose or express
or implied warranty of any kind related to the Purchased
Assets.
Article
II
Purchase Price and
Closing
Section
2.1
Purchase
Price .
Buyer will assume all liabilities of relating to the Purchase
Assets, including, but not limited to, the liabilities set forth of
Exhibit B hereto.
Section
2.2
No Assumption of
Liabilities . Except as set forth in
Section 2.1 above, Buyer shall not assume any liabilities and
obligations of Seller, known or unknown, liquidated or
unliquidated, accrued or unaccrued, due or to become due, absolute,
contingent or fixed (the “Seller’s Liabilities”),
including, but not limited to, Buyer shall not assume the following
Seller Liabilities (the “Excluded
Liabilities”):
(a)
Any Seller Liabilities
to or in respect of any temporary or permanent employees or former
employees of Seller for any period (collectively, the
“Employee Liabilities”), including, without limitation:
(A) any Seller Liability under or with respect to any
Employee Benefit Plan, whether or not written, at any time
maintained, contributed to by Seller or under which Seller may
incur Seller Liability, or any Seller Liability with respect to
Seller’s withdrawal or partial withdrawal from or termination
of any such plan, program or arrangement; (B) any sick days or
personal days; and (C) any claim of an unfair labor practice, for
severance pay or under any state unemployment compensation law or
regulation or under any federal or state employment discrimination
law or regulation, whether or not such Seller Liabilities are
described, listed or referred to on any Schedule or Exhibit hereto,
including any Seller Liability for severance or COBRA arising from
Seller’s termination of said employees;
(b)
Any Seller Liabilities
in respect of injury to or death of any person, animal or damage to
or destruction of any property, whether based on negligence, breach
of warranty, strict liability, enterprise liability or any other
legal or equitable theory, whether or not such Seller Liabilities
are described, listed or referred to on any Schedule or Exhibit
hereto;
(c)
All Seller Liabilities
for Taxes (as hereinafter defined), including Taxes relating to the
sale of the Purchased Assets to Buyer. “Tax” or
“Taxes” means any federal, state, local, or foreign
income, gross receipts, license, payroll, employment, excise,
severance, stamp, occupation, premium, windfall profits,
environmental (including taxes under Section 59Aof the Internal
Revenue Code, as amended (the “Code”)), customs duties,
capital stock, franchise, profits, withholding, social security (or
similar), unemployment, disability, real property, personal
property, sales, use, transfer, registration, value added,
alternative or add-on minimum, estimated or other tax of any kind
whatsoever, including any interest, penalty or addition thereto,
whether disputed or not.
(d)
All Seller Liabilities
directly or indirectly resulting from or arising out of
Seller’s entering into, performing its obligations pursuant
to, or consummating the transactions contemplated by, this
Agreement, including, without limitation, all legal and other
professional fees; and
(e)
Except as set forth in
Section 2.1, all promissory notes, letters of credit and
guaranties.
Section
2.3
The
Closing .
The consummation of the transactions contemplated by Sections
1.1 and 2.1 shall constitute the Closing. The Closing shall
take place at such other time or place or on such other date as
shall be mutually agreed upon by the Seller and Buyer, which date
shall constitute the Closing Date.
Section
2.4
Transfer
Documents . To effect the transfer of
the Purchased Assets in accordance with this Agreement at the
Closing, Seller shall execute and deliver to Buyer documents
consistent with the terms of this Agreement and satisfactory to
Buyer's Counsel, including
