Unassociated Document


    EXHIBIT
      10.1

    


    FIFTH
      AMENDMENT TO ASSET PURCHASE AGREEMENT

    


    THIS
      FIFTH AMENDMENT
      to Asset
      Purchase Agreement is dated this 9th
      day of
      June, 2008, by and among Hunter Bates Mining Corporation (“Hunter
      Bates”),
      a
      Minnesota corporation and wholly-owned subsidiary of Wits Basin Precious
      Minerals Inc. (“Wits
      Basin”),
      a
      Minnesota corporation (as successor-in-interest to Wits Basin) (the
“Purchaser”),
      Central City Consolidated, Corp. d/b/a Central City Consolidated Mining Co.,
      a
      Colorado corporation, Hunter Gold Mining Inc., a Colorado corporation and George
      Otten, a Colorado resident (collectively, the “Sellers”
      and
      each
      individually, a“Seller”),
      and
      Hunter Gold Mining Corp., a British Columbia corporation (the “Covenantor”)
      (the
      Purchaser, Sellers and Covenantors are individually or collectively, as the
      case
      may be, a “Party”
or
      “Parties”).

     

    RECITALS: The
      Parties entered into an Asset Purchase Agreement dated on or about September
      20,
      2006, for the sale and purchase of assets, real estate and real estate mining
      claims described in such asset purchase agreement, which was amended by that
      certain First Amendment to Asset Purchase Agreement dated October 31, 2006,
      that
      Second Amendment to Asset Purchase Agreement dated as of March 1, 2007, that
      Third Amendment to Asset Purchase Agreement dated May 31, 2007 and that Fourth
      Amendment to Asset Purchase Agreement dated January 14, 2008 (collectively,
      “Purchase
      Agreement”);
      and
      the wish to amend the Purchase Agreement on the terms and conditions hereafter
      set forth. Capitalized terms used but not defined herein shall have the meanings
      ascribed to them in the Purchase Agreement. 

    


    AGREEMENT

     

    NOW,
      THEREFORE, in consideration of the foregoing and the mutual covenants and
      agreements set forth below, the Parties agree that the Purchase Agreement shall
      be revised as follows:

     

    1. Section
      3.2 is hereby deleted and replaced in its entirety with the following language:
      

     

    Purchase
      Price.
      In the
      event that Purchaser elects to proceed to closing, as and for the purchase
      price
      of the Purchased Assets, Purchaser agrees to pay and Sellers agree to accept
      the
      sum of Six Million Seven Hundred Fifty Thousand Canadian Dollars ($6,750,000.00
      CDN) plus Three Million Six Hundred Twenty Thousand (3,620,000) unregistered
      and
      restricted shares of the .01 par value common capital stock of Wits Basin
      Precious Minerals Inc., a Minnesota corporation (“Wits
      Basin”),
      payable as set out in Section 3.3 hereof (the “Purchase
      Price”).

     

    2. Section
      3.3(b)(ii) subsection (iv) is hereby deleted and replaced in its entirety with
      the following language: 

     

    (iv)
      Three Million Six Hundred Twenty Thousand (3,620,000) shares of the unregistered
      and restricted .01 par value common capital stock of Wits Basin. 

     

    3. Section
      3.3(b)(iv) is hereby deleted and replaced in its entirety with the following
      language:

     

    Seller
      shall deliver to Purchaser a fully-executed Undertaking Agreement in the form
      of
Exhibit
      I
      attached
      hereto and a fully-executed Shareholder Voting Agreement in the form of
Exhibit
      J
      attached
      hereto. 

     

    4. Sellers
      and Covenantor agree that the operations of the limited personal liability
      provisions under the Promissory Note attached hereto as Exhibit “C” shall be
      suspended until such time as the Sellers have delivered the certificate of
      an
      Officer of Hunter Gold Mining Corp. confirming that the covenants set forth
      in
      the Undertaking Agreement have be performed by the parties thereto.

     

    5. All
      references to Exhibits E and F are hereby deleted in their entirety.


     

    6. An
      execution copy of Exhibits C, D, I and J to the Purchase Agreement are hereby
      attached to this Fifth Amendment and shall replace any previous versions of
      such
      Exhibits. 

     


    
      
         

      

      
         

        
          

        

      

      
         

      

    


    


     

    7. All
      references to “Central City Consolidated Mining Corp.” or “Central City
      Consolidated Mining Co.” or “Central City Mining Corp.” are hereby deleted in
      their entirety and replaced with “Central City Consolidated, Corp.”


     

    8. The
      first
      paragraph of the Purchase Agreement is hereby deleted and replaced in its
      entirety with the following language: 

     

    


    THIS
      ASSET PURCHASE AGREEMENT (this “Agreement”)
      is
      made and entered into as of this 20th day of September, 2006, by and among
      Wits
      Basin Precious Minerals Inc., a corporation organized under the laws of the
      State of Minnesota (the “Purchaser”),
      Central City Consolidated Corp. d/b/a Central City Consolidated Mining Co.,
      a
      corporation organized under the laws of the State of Colorado, Hunter Gold
      Mining Inc., a corporation organized under the laws of the state of Colorado
      and
      George Otten, a resident of Colorado, (collectively, the “Sellers”
and
      each individually as a “Seller”),
      and
      Hunter Gold Mining Corp., a corporation organized under the laws of the Province
      of British Columbia, (the “Covenantor”).
      

    


    9. The
      Parties acknowledge that Hunter Gold Mining Inc., a Colorado corporation, shall
      hereby be included in the definition of “Sellers”
and
      excluded from the definition of “Covenantors.”
All
      references to the term “Covenantors” shall include only Hunter Gold Mining
      Corp., a British Columbia corporation. All references to the plural term
“Covenantors” shall be deemed singular, mutatis
      mutandis.

     

    10. Section
      4.1.1 is hereby deleted in its entirety and replaced with the following
      language: 

     

    


     

    “Central
      City Consolidated Corp. and Hunter Gold Mining Inc. are corporations duly
      incorporated, validly existing and in good standing under the laws of their
      respective jurisdictions of incorporation. Central City Consolidated Corp.
      and
      Hunter Gold Mining Inc. have the requisite power to own, operate, use and/or
      lease the Purchased Assets, as applicable, and to conduct the operations of
      the
      Purchased Assets as presently being conducted by them and/or by the Covenantor,
      including any and all permits required by any public authority for such
      operations such as permits, or regulatory authorizations.”

     

    


     

    11. Section
      5.7 is hereby deleted in its entirety and replaced with the following language:
      

     

    “Shares
      Duly and Validly Issued.
      The
      3,620,000 shares of .01 par value common capital stock of Wits Basin
      constituting a portion of the Purchase Price shall have been duly and validly
      issued as fully paid and non-assessable, and in accordance with all applicable
      securities laws, as of the Closing Date.” 

     


    
      
         

      

      
         

        
          

        

      

      
         

      

    


    


     

    12. Any
      notice or other documents given pursuant to the Purchase Agreement to Hunter
      Gold Mining Inc., as Seller, shall be sent to: Hunter Gold Mining Corp., P.O.
      Box 2460, Station “R”, Kelowna, British Columbia, Canada V1X 6A5, Attention:
      Dell Balfour, Facsimile: (250) 765-4420, with a copy to: Pushor Mitchell LLP,
      3rd Floor, 1665 Ellis Street, Kelowna, British Columbia, Canada V1W 4T7,
      Attention: E. Blair Forrest, Facsimile: (250) 762-9115. 

     

    13. Section
      8.10 of the Purchase Agreement is deleted in its entirety and replaced with
      the
      following:

     

    “Purchaser
      reserves the right hereunder to assign its right(s) to one or more affiliated
      parties prior to closing, it being understood that Purchaser may create one
      or
      more new entities which may consummate the Contemplated Transactions. In the
      event that the Purchaser assigns it right(s) hereunder any such affiliated
      party
      or parties, then (i) Purchaser shall also make, or shall cause such assignee(s)
      to make, in respect of such assignee(s), the representations and warranties
      set
      forth in sections 5.1 to 5.6 (inclusive) of the Purchase Agreement, (ii)
      Purchaser shall cause such assignee(s) to agree to be bound by all of the
      Purchaser’s covenants and obligations under the Purchase Agreement except for
      those which, by their nature, are intended to be performed solely by the
      Purchaser notwithstanding any assignment of the Purchaser’s rights under the
      Purchase Agreement, (iii) both the Purchaser and each such assignee shall
      deliver a certificate of an officer thereof for the purposes of section 9.1
      of
      the Purchase Agreement, and (iv) the opinions set forth in the Purchaser
      Counsel’s Legal Opinion (as defined in section 9.4 hereof) shall extend, to the
      extent applicable, to both the Purchaser and its assignee(s).” 

     

    


     

    14. To
      each
      of the Sellers and the Covenantor, Hunter Bates hereby makes the representations
      and warranties set forth in sections 5.1 to 5.6 (inclusive) of the Purchase
      Agreement as though the term “Purchaser” set forth therein refers to Hunter
      Bates and with the exception that the representation set forth in section 5.5
      of
      the Purchase Agreement shall be deemed to include the words “Except for the
      consent of “Wits Basin,” at the beginning of such section. Hunter Bates further
      agrees to be bound by all of the covenants and obligations of the Purchaser
      except for those covenants and obligations which, by their nature, are intended
      to be performed by Wits Basin notwithstanding the assignment of Wits Basin’s
      rights under the Purchase Agreement to Hunter Bates. 

     

    15. Wits
      Basin hereby confirms that it has consented to the consummation by Hunter Bates
      of the “Contemplated Transactions” (as defined in the Purchase Agreement) and to
      its execution of any documents incidental thereto.

     

    16. The
      parties hereto agree that in the event the tax advisors to Hunter Gold Mining
      Inc. and Hunter Gold Mining Corp. identify and recommend an alternate structure
      for the delivery of the Purchase Price including, but not limited to, the
      distribution and documentation of the Purchase Price in the name of one or
      more
      alternate parties, and/or recommend an alteration to the content of the
      Allocation Schedule, then each of the parties hereto agrees to take all
      reasonable steps to record and effect the necessary changes to the Purchase
      Agreement and the documents ancillary thereto to implement such recommendation;
      provided, however, that Sellers and Covenantor shall reimburse Purchaser for
      all
      reasonable expenses incurred in the course of effecting such change.
      Notwithstanding the foregoing, Purchaser shall not be obligated to participate
      in effecting the aforementioned changes if, in the reasonable opinion of legal
      counsel to the Purchaser, there is a reasonable risk of adverse tax, accounting
      or securities law consequences to the Purchaser in connection with the
      implementation of such changes. The parties further agree that any references
      to
      a deemed value for the 3,620,000 shares of common capital stock of Wits Basin,
      which comprise a portion of the Purchase Price under the Purchase Agreement,
      contained in the Purchase Agreement or in any of the transaction documents
      ancillary to the Purchase Agreement shall not be binding on the parties thereto
      in conjunction with any valuation of the Purchase Price for taxation purposes
      and the Sellers and Covenantor shall be at liberty to employ any reasonable
      method of valuation that is recommended by the tax advisors to Hunter Gold
      Mining Inc. and Hunter Gold Mining Corp.

     

    17. Clause
      12.4(e) of the Purchase Agreement is hereby added with the following
      language:

     

    “(e)
      any
      costs not otherwise falling within the scope of subsections 12.4(a) - (e),
      inclusive, which are reasonably incurred by or on behalf of the Beneficiary
      (as
      defined in the Deed of Trust), following enforcement by the Beneficiary of
      its
      remedies under the Deed of Trust, in effecting the remediation and/or
      rehabilitation of the Acquired Real Property in respect of any activities of
      the
      Purchaser (or its related party successors) thereon where such activities (i)
      contravene any Environmental Law (regardless of whether such contravention
      is
      enforced against the Purchaser or its successors) and (ii) take place after
      January 15, 2005 and prior to the earlier of (a) time of repossession of the
      Acquired Real Property by the Beneficiary or (b) transfer of the Acquired Real
      Property to a third party unrelated to the Purchaser; provided, however, that
      the maximum amount of the Purchaser's liability under this subsection 12.4(e)
      shall be $4,750,000 CDN.”

     

    18. The
      Allocation Schedule set forth in Section 3.8 is hereby deleted in its entirety
      and replaced with the allocation schedule attached hereto as Exhibit
      K.
      

     


    
      
         

      

      
         

        
          

        

      

      
         

      

    


    


     

    19. The
      Parties agree that the following amounts, when advanced by the Purchasers on
      behalf of the Sellers and/or the Covenantors, shall be credited against the
      amount due under the Promissory Note attached hereto and to the Purchase
      Agreement as Exhibit “C”, and Sellers shall deliver a receipt to the Purchasers
      upon payment by the Purchasers of such amounts:

     

    
      	 	
              (i)

            	
              $15,000.00
                to Pushor Mitchell LLP in respect of past legal fees of the Covenantor
                (paid),

            


    

     

    
      	 	
              (ii)

            	
              $5,000.00
                to Dill Dill Carr Stonbraker and Hutchings, PC in respect of the
                closing
                legal costs of Hunter Gold Mining Inc.
                (paid),

            


    

     

    
      	 	
              (iii)

            	
              $7,500.00
                to Pushor Mitchell LLP for the closing legal costs of the Covenantor
                (pending),

            


    

     

    
      	 	
              (iv)

            	
              $3,467.16
                to First American Heritage Title Company for the Sellers’ closing costs as
                per the Sellers Closing Statement
                (pending),

            


    

     

    
      	 	
              (v)

            	
              $1,376.60
                for the Sellers’ 2008 personal property taxes
                (pending)

            


    

     

    for
      a
      total of $32,343.76.

     

    20. At
      the
      end of the first sentence of Article 2 of the Purchase Agreement, the words
      “(Assumed
      Liabilities”)”
is
      hereby added. 

     

    21. All
      references to “Purchaser Losses” in Sections 6.4(d) and (e) of the Purchase
      Agreement are hereby replaced with “Purchaser Environmental Losses.”


     

    22. The
      term
“Purchaser Losses” in Section 12.1 of the Purchase Agreement is hereby replaced
      with the following language: 

     

    “loss,
      liability, expense (including without limitation reasonable expenses of
      investigation and reasonable attorneys’ fees and expenses in connection with any
      action, suit or proceeding brought against the Purchaser (or its related party
      successors)) or Damages suffered or incurred by the Purchaser (or its related
      party successors) (the “Purchaser
      Losses”)”
      

     

    23. Except
      as
      provided for above, all the terms and conditions of the Purchase Agreement
      shall
      remain in full force and effect. This Fifth Amendment may be executed in
      counterparts. A facsimile signature shall be deemed an original.

     

    


     

    Signature
      Page Follows

     


    
      
         

      

      
         

        
          

        

      

      
         

      

    


    IN
      WITNESS WHEREOF, the parties hereto have caused this Fifth Amendment to be
      duly
      executed and delivered, all on and as of the date first written
      above.

     

    


     

    
      	 	 
	
               

              HUNTER
                BATES MINING CORPORATION 

              a
                Minnesota corporation

              By:
                /s/
                Mark D. Dacko

              Its:
                CFO

            	 
	
               

              CENTRAL
                CITY CONSOLIDATED, CORP. 

              a
                Colorado corporation

              By:/s/
                George E. Otten 

              Its:
                President

            	
               

              GEORGE
                OTTEN, a resident of Colorado

               

               

              /s/
                George E. Otten

            
	
               

              HUNTER
                GOLD MINING CORP.

              a
                British Columbia corporation

              By:
                /s/
                George E. Otten 

              Its:President

            	
               

              HUNTER
                GOLD MINING INC. 

              a
                Colorado corporation

              By:
                /s/
                George E. Otten 

              Its:
                President

            


    

    


    


    The
      foregoing is consented to by and joined solely with respect to Section 5.7
      of
      the Purchase Agreement, as amended by this Fifth Amendment: 

     

    WITS
      BASIN PRECIOUS MINERALS INC. 

     

    a
      Minnesota corporation

     

    


     

    By:
      /s/
      Mark D. Dacko

    Its:
      CFO