EXHIBIT 10.1
FIFTH AMENDMENT TO ASSET PURCHASE AGREEMENT
THIS FIFTH AMENDMENT to
Asset Purchase Agreement is dated this 9
th 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 p
| 
