EXHIBIT
10.2

     

    NEITHER
THIS CONVERTIBLE NOTE NOR THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION
HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER THE
SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION (TOGETHER, THE “SECURITIES
LAWS”) AND MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED OR
ENCUMBERED IN THE ABSENCE OF COMPLIANCE WITH SUCH SECURITIES LAWS AND UNTIL THE
ISSUER THEREOF SHALL HAVE RECEIVED AN OPINION FROM COUNSEL ACCEPTABLE TO IT THAT
THE PROPOSED DISPOSITION WILL NOT VIOLATE ANY APPLICABLE SECURITIES
LAWS.  TRANSFER OF THIS CONVERTIBLE NOTE IS ALSO RESTRICTED BY THE
CONVERTIBLE NOTES PURCHASE AGREEMENT REFERRED TO HEREIN.

     

    THE
PAYMENT AND PERFORMANCE OF THIS CONVERTIBLE NOTE IS SUBJECT TO THE TERMS AND
CONDITIONS OF THAT CERTAIN CONVERTIBLE NOTES PURCHASE AGREEMENT ENTERED INTO AS
OF APRIL 10, 2007, AS AMENDED BY THAT CERTAIN AMENDMENT TO CONVERTIBLE NOTES
PURCHASE AGREEMENT DATED JUNE 19, 2007, THAT CERTAIN AMENDMENT NO. 2 DATED
NOVEMBER 10, 2008, AND THAT CERTAIN AMENDMENT NO. 3 DATED DECEMBER 22, 2008 BY
THE HOLDER AND ISSUER.

     

    CERTIFICATE
NO: 1

     

    SECOND AMENDED AND RESTATED
PROMISSORY NOTE

     

    
      	
              $10,421,107.18

            	
              December
      22, 2008

            


    

    


    FOR VALUE RECEIVED, Wits Basin
Precious Minerals Inc., a corporation organized and existing under the laws of
the State of Minnesota (“Issuer”), hereby
unconditionally promises to pay to the order of China Gold LLC, a Kansas limited
liability company, or its successors and assigns (the “Holder”) on demand at any time
on or after February 15, 2010 (the “Maturity Date”), the principal
sum of up to Ten Million Four Hundred Twenty-One Thousand One Hundred Seven and
18/100 Dollars ($10,421,107.18) (the “Principal”), together with
accrued and unpaid interest thereon, as provided herein and from the Prior Notes
below until fully paid (the “Indebtedness”), all without
relief from valuation or appraisement laws.

     

    This
Second Amended and Restated Promissory Note (the “Note”) is issued pursuant to
that certain Convertible Notes Purchase Agreement dated as of April 10, 2007, as
previously amended by that certain Amendment to Convertible Notes Purchase
Agreement dated June 19, 2007, as further amended by that certain Amendment No.
2 to Convertible Notes Purchase Agreement on November 10, 2008, and as further
amended by that certain Amendment No. 3 to Convertible Notes Purchase Agreement
on the date hereof  (as amended, modified, or replace from time to
time, the “Notes Purchase
Agreement”).  Pursuant to that certain Amended and Restated
Promissory Note dated November 11, 2008 (the “First Amended Note”), the
Issuer and Holder amended and consolidated the following notes issued pursuant
to the Notes Purchase Agreement:  (i) Convertible Promissory Note
issued on April 10, 2007 in the principal amount of $3,000,000; (ii) Convertible
Promissory Note issued on May 7, 2007 in the principal amount of $2,000,000;
(iii) Convertible Promissory Note issued on June 19, 2007 in the principal
amount of $4,000,000; and (iv) Convertible Promissory Note issued on July 9,
2007 in the principal amount of $800,000 (collectively, the “Prior
Notes”).  Pursuant to this Note, the First Amended Note is
consolidated with that certain Promissory Note dated October 28, 2008 in the
principal amount of $441,000.  Holder has delivered the Prior Notes
and First Amended Note to Issuer and they have been cancelled in their
entirety.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    1.           Payment of Principal and
Interest.  Subject to acceleration or earlier payment as
provided for elsewhere in this Note, the Notes Purchase Agreement or any of the
other agreements, documents, and instruments relating to any of the Indebtedness
or any security therefor that are required by the Notes Purchase Agreement to be
executed and delivered to or for the benefit of Holder (collectively, together
with this Note and the Notes Purchase Agreement, and as each have and may be
amended from time to time, the “Investment Documents”), the
principal balance of this Note, and any accrued and unpaid interest thereon,
shall be due and payable upon Holder’s demand on or after the Maturity
Date.   Issuer shall make all payments payable in cash under this
Note in lawful money of the United States.  All payments paid by
Issuer to Holder under this Note and under the other Investment Documents shall
be applied in the following order of priority:  (a) to amounts, other
than principal and interest, due to Holder pursuant to this Note for all costs
of collection of any kind, including reasonable attorneys’ fees and expenses;
(b) to accrued but unpaid interest on this Note; and (c) to the unpaid principal
balance of this Note.  If Issuer makes any payment of principal,
interest or other amounts upon the Indebtedness by check, draft, or other
remittance, Holder shall not be deemed to have received such payment until
Holder actually receives the payment instrument.

     

    2.           Calculation of
Interest.  Interest shall accrue on the outstanding principal
balance at the end of each day on which any amount is outstanding under this
Note at the rate of 12.25% (the “Interest Rate”) per
annum.  Interest shall be calculated on a basis of the actual number
of days elapsed over a year of 365 days, commencing as of the date
hereof.

     

    3.           Prepayment.  This
Note may be prepaid in cash or other immediately available funds, in whole or in
part, by Issuer at any time and from time to time, without premium or penalty (a
“Prepayment”).

     

    4.           Waiver.  Payment
of principal and interest due under this Note shall be made without presentment
or demand.  The Issuer and all others at any time liable directly or
indirectly (including, without limitation, the Issuer, any co-makers, endorsers,
sureties and guarantors, all of which are referred to herein as “Parties”), severally waive
presentment, demand and protest, notice of protest, demand, and dishonor, and
nonpayment of this Note, and all diligence in collection and agree to pay all
costs of collection when incurred, including reasonable attorneys’ fees, and to
perform and comply with each of the covenants, conditions, provisions, and
agreements of the Issuer contained in every instrument now evidencing the
Indebtedness.  No release by Holder of any security for payment of the
Indebtedness or any modification or restructuring in respect of any lien or
security interest held or at any time obtained or acquired by Holder for payment
of such Indebtedness shall operate to release, discharge, impair or alter the
liability of any Party liable at any time directly or indirectly for payment of
such Indebtedness.

     

    5.           Renewal and
Modification.  Issuer further agrees that the Indebtedness may
be from time to time, extended, renewed, modified, rearranged, or evidenced by
one or more other notes or obligations in substitution for this Note and upon
and for such term or terms agreed to by Issuer and Holder in writing, and with
or without notice to other Parties.  Issuer agrees that upon and after
such extension, renewal, modification, rearrangement, substitution, or other
change in form of the Indebtedness, each of the other Parties shall remain
liable in respect of the Indebtedness so renewed, extended, modified,
rearranged, or otherwise evidenced in the same capacity and to the same extent
as prior thereto.  No release or discharge (in whole or in part) of
any Party hereto by Holder shall in any manner impair, release, discharge, or
alter the liability of any other Party.

     

    
      
        
        

      

      
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    6.           Events of
Default.  Any one or more of the following events shall
constitute an event of default (each, an “Event of Default”) under this
Note: (a) Issuer fails to timely pay as and when due any monetary obligation
under this Note in accordance with the terms hereof; (b) Issuer’s assignment for
the benefit of creditors, or filing of a petition in bankruptcy or for
reorganization or to effect a plan or arrangement with creditors; (c) Issuer’s
application for, or voluntary permission of, the appointment of a receiver of
trustee for any or all Company property; (d) any action or proceeding described
in the foregoing paragraphs (b) or (c) is commenced against Issuer and such
action or proceeding is not vacated within sixty (60) days of its commencement;
(e) Issuer’s dissolution or liquidation; and (f) an event of default under any
other Investment Document shall have occurred.

     

    7.           Rights and
Remedies.  Upon the occurrence, and during the continuation, of
an Event of Default (a) all Indebtedness and all other amounts due and owing
under this Note shall (at the option of Holder) immediately become due and
payable without demand and without notice to Issuer, (b) Holder shall have all
rights, powers and remedies set forth in the Investment Documents, as well as
any and all rights and remedies available to it under any applicable law or as
otherwise provided at law or in equity; and (c) Issuer shall pay to Holder, in
addition to the sums stated above, the costs of collection, regardless of
whether litigation is commenced, including reasonable attorneys’
fees.

     

    Holder
may employ an attorney to enforce its rights and remedies hereunder and Issuer
hereby agrees to pay Holder’s reasonable attorneys’ fees and other reasonable
expenses, including reasonable expenses relating to any assistance provided by
Holder to Issuer in resolving such defaults and amounts incurred by Holder in
exercising any of Holder’s rights and remedies upon an Event of
Default.  Holder’s rights and remedies under this Note and the other
Investment Documents shall be cumulative.  Holder shall have all other
rights and remedies not inconsistent herewith as provided under the Uniform
Commercial Code as in effect in the State of Kansas, or otherwise by law, or in
equity.  No exercise by Holder of one right or remedy shall be deemed
an election, and no waiver by Holder of any Event of Default shall be deemed a
continuing waiver.  No delay by Holder shall constitute a waiver,
election, or acquiescence by it.

     

    8.           Revival and Reinstatement of
Note.  To the extent that any payment to Holder or any payment
or proceeds of any collateral received by Holder in reduction of the
Indebtedness is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be repaid to a trustee, to Issuer (or
Issuer’s successor) as a debtor-in-possession, or to a receiver or any other
party under any bankruptcy law, state or federal law, common law or equitable
cause, then the portion of the Indebtedness intended to have been satisfied by
such payment or proceeds shall remain due and payable hereunder, be evidenced by
this Note, and shall continue in full force and effect as if such payment or
proceeds had never been received by Holder whether or not this Note has been
marked “paid” or otherwise canceled or satisfied or has been delivered to
Issuer, and in such event Issuer shall be immediately obligated to return the
original Note to Holder and any marking of “paid” or other similar marking shall
be of no force and effect.

     

    9.           Authority.  Issuer
warrants and represents that the persons or officers who are executing this Note
and the other Investment Documents on behalf of Issuer have full right, power
and authority to do so, and that this Note and the other Investment Documents
constitute valid and binding documents, enforceable against Issuer in accordance
with their terms, and that no other person, entity, or party is required to
sign, approve, or consent to, this Note.

     

    
      
        
        

      

      
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    10.           Governing Law; Consent to
Forum.  This Note shall be governed by the laws of the State of
Kansas without giving effect to any choice of law rules thereof; provided, however, that if any
of the collateral securing the Indebtedness shall be located in any jurisdiction
other than Kansas, the laws of such jurisdiction shall govern the method, manner
and procedure for foreclosure of Holder’s security interest, lien or mortgage
upon such collateral and the enforcement of Holder’s other remedies in respect
of such collateral to the extent that the laws of such jurisdiction are
different from or inconsistent with the laws of Kansas.  AS PART OF
THE CONSIDERATION FOR NEW VALUE THIS DAY RECEIVED, ISSUER HEREBY CONSENTS TO THE
JURISDICTION OF ANY STATE COURT LOCATED WITHIN JOHNSON COUNTY, KANSAS OR FEDERAL
COURT IN THE DISTRICT OF KANSAS, AND WAIVES PERSONAL SERVICE OF ANY AND ALL
PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE MADE BY
CERTIFIED OR REGISTERED MAIL AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED
UPON ACTUAL RECEIPT THEREOF.  ISSUER WAIVES ANY OBJECTION TO
JURISDICTION AND VENUE OF ANY ACTION INSTITUTED AGAINST IT AS PROVIDED HEREIN
AND AGREES NOT TO ASSERT ANY DEFENSE BASED ON LACK OF JURISDICTION OR
VENUE.  ISSUER FURTHER AGREES NOT TO ASSERT AGAINST HOLDER (EXCEPT BY
WAY OF A DEFENSE OR COUNTERCLAIM IN A PROCEEDING INITIATED BY HOLDER) ANY CLAIM
OR OTHER ASSERTION OF LIABILITY WITH RESPECT TO THIS NOTE, THE OTHER INVESTMENT
DOCUMENTS, HOLDER’S CONDUCT OR OTHERWISE IN ANY JURISDICTION OTHER THAN THE
FOREGOING JURISDICTIONS.

     

    11.           WAIVER OF JURY TRIAL AND
COUNTERCLAIMS.  TO THE FULLEST EXTENT PERMITTED BY LAW, AND AS
SEPARATELY BARGAINED-FOR CONSIDERATION TO HOLDER, ISSUER HEREBY WAIVES ANY RIGHT
TO TRIAL BY JURY (WHICH HOLDER ALSO WAIVES) IN ANY ACTION, SUIT, PROCEEDING OR
IN ANY COUNTERCLAIM OF ANY KIND ARISING OUT OF OR OTHERWISE RELATING TO THIS
NOTE, THE INDEBTEDNESS, THE COLLATERAL SECURING THE INDEBTEDNESS, OR THE
HOLDER’S CONDUCT IN RESPECT OF ANY OF THE FOREGOING.

     

    12.           Transfer of
Note.  Issuer shall not transfer any obligations hereunder
without Holder’s prior written consent, which may be withheld in Holder’s sole
and absolute discretion.  With the prior written consent of Issuer,
which shall not be unreasonably withheld, conditioned, or delayed, Holder may
participate, sell, assign, transfer or otherwise dispose of all or any portion
of its interest in this Note (including Holder’s rights, title, interests,
remedies, powers and duties hereunder) to a purchaser, participant, any
syndicate, or any other Person (each, a “Note
Purchaser”).  In connection with any such disposition (and
thereafter), Holder may, with adequate safeguards of confidentiality in a manner
satisfactory to Issuer, disclose any financial information Holder may have
concerning Issuer to any such Note Purchaser or potential Note
Purchaser.

     

    13.           Further
Assurances.  Issuer agrees to execute and deliver such further
documents and to do such other acts as Holder may request in order to effect or
carry out the terms of this Note and the other Investment Documents and the due
performance of Issuer’s obligations hereunder and thereunder.

     

    14.           Relationship to Security
Agreement.  The Indebtedness shall be entitled to the benefits
of, shall be construed in accordance with the security granted by Issuer to
Holder pursuant to that certain Amended and Restated Security Agreement and that
certain Second Amended and Restated Pledge Agreement, each dated of even date
herewith by and between Holder and Issuer.  Holder acknowledges and
agrees that, pursuant to the terms of Amendment No. 3 to the Convertible Notes
Purchase Agreement, it has completely and fully released from its security
interest the Rights and any other interests in the PRC Properties, and that upon
effectiveness of the releases, it has no other security over any equity
interests in (except with respect to the pledge of Issuer’s equity interest
pursuant to that certain Second Amended and Restated Pledge Agreement dated of
even date herewith by and between Issuer and Holder) or the assets of, or
otherwise in relation to, China Global Mining Resources (BVI) Limited, with
registered number 1513743 in the British Virgin Islands, and any of its
subsidiary undertakings, from time to time other than that specified in Section
1 of the Amended and Restated Security Agreement.

     

    
      
        
        

      

      
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    15.           Miscellaneous.

     

     
(a)           Time is of
the essence with respect to this Note.

     

      (b)           Issuer
hereby waives presentment, demand, protest, and notice of dishonor and
protest.  No waiver of any right or remedy of the Holder under this
Note shall be valid unless in a writing executed by the Holder and any such
waiver shall be effective only in the specific instance and for the specific
purpose given.  All rights and remedies of the Holder of this Note
shall be cumulative and may be exercised singly, concurrently, or
successively.

     

      (c)           Unless
otherwise provided herein, any notice required or permitted to be given
hereunder shall be given by Issuer to the Holder or the Holder to the Company in
accordance with the Notes Purchase Agreement.

     

      (d)           Any
provision of this Note that is prohibited or unenforceable in any jurisdiction
shall be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof in that jurisdiction or
affecting the validity or enforceability of such provision in any other
jurisdiction.

     

      (e)           This
Note and the other Investment Documents collectively: (i) constitute the final
expression of the agreement between Issuer and Holder concerning the
Indebtedness; (ii) contain the entire agreement between Issuer and Holder
respecting the matters set forth herein and in the other Investment Documents;
and (iii) may not be contradicted by evidence of any prior or contemporaneous
oral agreements or understandings between Issuer and Holder.  Neither
this Note nor any of the terms hereof may be terminated, amended, supplemented,
waived or modified orally, but only by an instrument in writing executed by the
party against which enforcement of the termination, amendment, supplement,
waiver or modification is sought.

     

      (f)           If
there is a conflict between or among the terms, covenants, conditions or
provisions of this Note and the other Investment Documents, then any term,
covenant, condition and/or provision that Holder may elect to enforce from time
to time so as to enlarge the interest of Holder in its security for the
Indebtedness, afford Holder the maximum financial benefits or security for the
Indebtedness, and/or provide Holder the maximum assurance of payment of the
Indebtedness and the Indebtedness in full, shall control.  ISSUER
ACKNOWLEDGES AND AGREES THAT IT HAS BEEN PROVIDED WITH SUFFICIENT AND NECESSARY
TIME AND OPPORTUNITY TO REVIEW THE TERMS OF THIS NOTE AND EACH OF THE INVESTMENT
DOCUMENTS WITH ANY AND ALL COUNSEL IT DEEMS APPROPRIATE, AND THAT NO INFERENCE
IN FAVOR OF, OR AGAINST, HOLDER OR ISSUER SHALL BE DRAWN FROM THE FACT THAT
EITHER SUCH PARTY HAS DRAFTED ANY PORTION OF THIS NOTE OR ANY OF THE INVESTMENT
DOCUMENTS.

     

      (g)           The
terms “include”, “including” and similar terms shall be construed as if followed
by the phrase “without being limited to.”  The term “or” has, except
where otherwise indicated, the inclusive meaning represented by the phrase
“and/or.”  Words of masculine, feminine or neuter gender shall mean
and include the correlative words of the other genders, and words importing the
singular number shall mean and include the plural number, and vice
versa.  All article, section, schedule, and exhibit captions are used
for convenient reference only and in no way define, limit or describe the scope
or intent of, or in any way affect, any such article, section, schedule, or
exhibit.  Unless the context of this Note clearly requires otherwise,
references to the plural include the singular, references to the singular
include the plural.  Any reference in this Note or in the Investment
Documents to this Note or to any of the Investment Documents shall include all
alterations, amendments, changes, extensions, modifications, renewals,
replacements, substitutions, and supplements thereto and thereof, as applicable.
An Event of Default shall “continue” or be “continuing” until such Event of
Default has been waived in writing by Holder or completely cured in accordance
with the terms of the applicable Investment Documents.

     

    [The
remainder of this page is intentionally blank.  Signature page
follows.]

     

    
      
        
        

      

      
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    IN WITNESS WHEREOF, Issuer has
executed and delivered this Note as of the date first stated above.

     

    
      	 
      	
              ISSUER:

            
	 
      	 
      
	 
      	
              WITS
      BASIN PRECIOUS MINERALS INC.

            
	 
      	 
      	 
      
	 
      	
              By:

            	
              /s/ Mark D. Dacko

            
	 
      	
              Name:

            	
              Mark D. Dacko

            
	 
      	
              Title:

            	
              Chief Financial
  Officer