Exhibit 10.49
AMENDED AND RESTATED
WARRANT TO PURCHASE
MEMBERSHIP INTERESTS
OF
MEZZCO, L.L.C.
THIS WARRANT AND THE UNDERLYING SECURITIES ISSUABLE UPON EXERCISE OF THIS
WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY STATE SECURITIES OR BLUE SKY LAWS AND MAY NOT BE
OFFERED, SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE ASSIGNED EXCEPT (1)
PURSUANT TO A REGISTRATION STATEMENT WITH RESPECT TO SUCH SECURITIES THAT IS
EFFECTIVE UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT RELATING TO THE DISPOSITION OF SECURITIES,
(2) IN ACCORDANCE WITH APPLICABLE STATE SECURITIES AND BLUE SKY LAWS AND (3) IN
ACCORDANCE WITH APPLICABLE STATE GAMING LAWS AND REQUIREMENTS AND RESTRICTIONS
IMPOSED BY THE NEVADA GAMING COMMISSION.
THE MEMBERSHIP INTERESTS ISSUABLE UPON EXERCISE OF THIS WARRANT ARE SUBJECT TO
THE PROVISIONS OF A CERTAIN AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT,
DATED AS OF NOVEMBER 30, 2006, INCLUDING CERTAIN RESTRICTIONS ON TRANSFER SET
FORTH THEREIN.
A COMPLETE AND CORRECT COPY OF SUCH AGREEMENT IS AVAILABLE FOR
INSPECTION AT THE PRINCIPAL OFFICE OF THE COMPANY AND WILL BE FURNISHED UPON
WRITTEN REQUEST AND WITHOUT CHARGE.
WHEN THE LIMITED LIABILITY COMPANY ISSUING THE OWNERSHIP INTEREST REPRESENTED BY
THIS CERTIFICATE HAS BEEN LICENSED BY OR REGISTERED WITH THE NEVADA GAMING
COMMISSION, THE PURPORTED SALE, ASSIGNMENT, TRANSFER, PLEDGE, GRANTING OF ANY
OPTION TO PURCHASE OR OTHER DISPOSITION OF SUCH INTEREST SHALL BE INEFFECTIVE
UNLESS APPROVED IN ADVANCE BY THE COMMISSION.
IF AT ANY TIME THE COMMISSION
FINDS THAT A MEMBER IS UNSUITABLE TO HOLD SUCH INTEREST, THIS WARRANT AND THE
SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT SHALL BE SUBJECT TO REDEMPTION
AND/OR REPURCHASE, PURSUANT TO THE TERMS SET FORTH HEREIN.
BEGINNING ON THE
DATE WHEN THE COMMISSION SERVES NOTICE OR A DETERMINATION OF UNSUITABILITY
PURSUANT TO APPLICABLE LAW UPON THE COMPANY, IT SHALL BE UNLAWFUL FOR THE
UNSUITABLE MEMBER (A) TO RECEIVE ANY DIVIDEND OR INTEREST OR ANY PAYMENT OR
DISTRIBUTION OF ANY KIND, INCLUDING OF ANY SHARE OF THE DISTRIBUTION OF PROFITS
OR CASH OR ANY OTHER PROPERTY, OR PAYMENTS UPON DISSOLUTION, FROM THE COMPANY,
OTHER THAN A RETURN OF CAPITAL AS REQUIRED ABOVE; (B) TO EXERCISE DIRECTLY OR
THROUGH ANY PROXY, TRUSTEE OR NOMINEE ANY VOTING RIGHT CONFERRED BY THE MEMBER'S
INTEREST IN THE COMPANY; (C)
TO PARTICIPATE IN THE MANAGEMENT OF THE COMPANY; OR (D) TO RECEIVE ANY
REMUNERATION (OTHER THAN THE REDEMPTION PRICE) IN ANY FORM FROM THE COMPANY OR
FROM ANY COMPANY HOLDING A GAMING LICENSE FOR SERVICES RENDERED OR OTHERWISE.
Warrant No. 1
August 9, 2004
MEZZCO, L.L.C., a Nevada limited liability company (the "Company"), hereby
certifies that, for value received and pursuant to the Securities Purchase
Agreement dated as of August 9, 2004, between the Company and the Purchasers
named therein (the "Purchase Agreement"), BEAR STEARNS SECURITIES CORP. F/A/O
POST TOTAL RETURN FUND, L.P. (together with its successors and permitted assigns
and any permitted transferees of this Warrant, and their successors and
permitted assigns, the "Holder"), is