Exhibit 3.34
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
OF
DIVERSIFIED OPPORTUNITIES GROUP LTD.
This Operating Agreement ("Agreement") of Diversified Opportunities Group
Ltd., a limited liability company organized pursuant to the laws of the State of
Ohio, is made effective as of February 22, 2002 by Gameco, Inc., a Delaware
corporation, the sole Member (the "Member") of Diversified Opportunities Group
Ltd. (the "Company"). This Agreement is intended to and does herewith restate,
replace and amend, in its entirety, the prior operating agreement of the
Company, dated February 1, 1996, as amended, which from and after the execution
hereof, shall be of no further force and effect.
The Company has been formed pursuant to and in accordance with the Limited
Liability Company Act of Ohio (Ohio Revised Code (S) 1705.01 et seq.) as amended
from time to time (the "Act"), and the Member does herewith state as follows:
1. Name. The name of the limited liability company is Diversified
Opportunities Group Ltd.
2. Organization. The Company has been formed as an Ohio limited liability
company pursuant to the provisions of the Act.
3. Purpose. The Company is formed for the object and purpose of:
a. Pursuing any lawful business whatsoever, or which shall at any
time appear conducive to or expedient for the benefit of the
Company or the protection of its assets;
b. Exercising all powers which may be legally exercised under the
Act; and
c. Engaging in any activities reasonable necessary or convenient to
the foregoing.
4. Powers. In furtherance of its purposes, but subject to all of the
provisions of this Agreement, the Company shall have the power and is hereby
authorized to:
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a. acquire by purchase, lease, contribution of property or otherwise,
own, hold, sell, convey, transfer or dispose of any real or personal property
which may be necessary, convenient or incidental to the accomplishment of the
purposes of the Company;
b. act as a trustee, executor, nominee, bailee, director, officer,
agent or in some other fiduciary capacity for any person or entity and to
exercise all of the powers, duties, rights and responsibilities associated
therewith;
c. take any and all actions necessary, convenient or appropriate as
trustee, executor, nominee, bailee, director, officer, agent or other fiduciary,
including the granting or approval of waivers, consents or amendments of rights
or powers relating thereto and the execution of appropriate documents to
evidence such waivers, consents or amendments;
d. operate, purchase, maintain, finance, improve, own, sell, convey,
assign, mortgage, pledge, guaranty, lease or demolish or otherwise dispose of
any real or personal property which may be necessary, convenient or incidental
to the accomplishment of the purposes of the Company;
e. borrow money, issue evidences of indebtedness and guarantee the
indebtedness of others in furtherance of any or all of the purposes of the
Company, and secure the same by mortgage, pledge or other lien on the assets of
the Company;
f. invest any funds of the Company pending distribution or payment of
the same pursuant to the provisions of this Agreement;
g. prepay in whole or in part, refinance, recast, increase, modify or
extend any indebtedness of the Company and, in connection therewith, execute any
extensions, renewals or modifications of any mortgage or security agreement
securing such indebtedness;
h. enter into, perform and carry out contracts of any kind, including,
without limitation, contracts with any person or entity affiliated with the
Member, necessary to, in connection with, convenient to, or incidental to the
accomplishment of the purposes of the Company;
i. employ or otherwise engage employees, managers, contractors,
advisors, attorneys and consultants and pay reasonable compensation for such
services;
j. enter into partnerships, limited liability companies, trusts,
associations, corporations or other ventures with other persons or entities in
furtherance of the purposes of the Company; and
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k. do such other things and engage in such other activities related to
the foregoing as may be necessary, convenient or incidental to the conduct of
the business of the Company, and have and exercise all of the powers and rights
conferred upon limited liability companies formed pursuant to the Act.
5. Principal Business Office. The principal business office of the Company
shall be located at 1231 Main Avenue, Cleveland, Ohio 44113.
6. Registered Agent and Office. The registered agent and the registered
office shall be as stated in the Articles of Organization filed with the Ohio
Secretary of State. The Member may change the registered agent or registered
office by appropriate filings with the Secretary of State. In the event the
registered agent ceases to act as such or the registered office changes, the
Member shall promptly designate a new registered agent or file a notice of
change of registered office, as the case may be.
7. Member. The name and the mailing address of the Member is set forth on
Schedule A attached hereto.
8. Limited Liabilities. Except as otherwise provided by the Act, the
debts, obligations and liabilities of the Company, whether arising in contract,
tort or otherwise, shall be solely the debts, obligations and liabilities of the
Company, and the Member shall not be obligated personally for any such debt,
obligation or liability of the Company solely by reason of being a member of the
Company.
9. Admittance. The Member is deemed admitted as the Member of the Company
upon its execution and delivery of this Agreement.
10. Additional Contributions. The Member is not required to make any
additional capital contribution to the Company. However, a Member may make
additional capital contributions to the Company in such amounts and at such
times as shall be determined by the Member.
11. Allocation of Profits and Losses. The Company's profits and losses
shall be allocated to the Member.
12. Distributions. Distributions shall be made to the Member at the times
and in the aggregate amounts determined by the Member.
13. Management. The management of the Company shall be vested in the
Managers. The Company shall initially have one (1) Manager. The Member intends
that the Manager shall run the activities of the Company and shall have such
other powers as are delineated herein.
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a. Selection of Manager. The Manager shall be the Member.
b. Term of Office. The Manager shall hold office until his earlier
resignation, removal from office, or death.
c. Vacancies. If the Manager shall vacate his position, such vacancy
shall be filled by the decision of the Member.
d. General Powers of Manager. Except to the extent otherwise
provided by law or this Agreement and without prejudice to the
general powers conferred by or implied by statutory law in the
State of Ohio all of the authority of the Company shall be
exercised under the authority of the Manager and all decisions
shall be made upon the consent of the Manager, including without
limitation, the following powers:
i. To appoint, and at his discretion, with or without cause, to
remove or suspend supporting staff, officers, assistants,
supervisors, agents and employees of the Company as the
Manager may from time to time consider advisable, and to
determine the duties and fix the compensation of all
supporting staff, officers, assistants, agents, supervisors
and employees.
ii. To designate a depository or depositories of the funds of
the Company and the persons who shall be authorized to sign
notes, checks, drafts, contracts, deeds, mortgages and other
instruments on behalf of the Company. In this regard, the
Manager shall be authorized to sign notes, checks, drafts,
contracts, deeds, mortgages and other instruments on behalf
of the Company.
iii. The business and affairs of the Company shall be managed and
conducted by the Manager. Instruments and documents
providing for the acquisition, mortgage, or disposition of
property of the Company shall be valid and binding upon the
Company, if they are executed by the Manager of the Company.
e. Removal of Manager. Any Manager may be removed, either with or
without cause, at any time, by the Member. The vacancy caused by
any such removal may be filled by the Member.
14. Officers. The Manager may, from time to time as he deems advisable,
appoint officers of the Company, assign in writing titles (including, without
limitation, Chairman, President,
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Vice President, Treasurer and Secretary) to any such persons and set forth in
writing such persons' duties and powers. Unless otherwise designated in writing,
if the title is one commonly used for officers of a business corporation formed
under the Act, the assignment of such title shall constitute the delegation to
such person of the authorities and duties that are normally associated with that
office. Any delegation pursuant to this Section 14 may be revoked at any time by
the Manager.
15. Other Business. The Member may engage in or possess an interest in
other business ventures (unconnected with the Company) of every kind and
description, independently or with others. The Company shall not have any rights
in or to such independent ventures or the income or profits therefrom by virtue
of this Agreement.
16. Exculpation and Indemnification. No Member, Manager or Officer shall be
liable to the Company, or any other person or entity who has an interest in the
Company, for any loss, damage or claim incurred by reason of any act or omission
performed or omitted by such Member, Manager or Officer in good faith on behalf
of the Company and in a manner reasonably believed to be within the scope of the
authority conferred on such Member, Manager or Officer by this Agreement, except
that a Member, Manager or Officer shall be liable for any such loss, damage or
claim incurred by reason of such Member's, Manager's or Officer's gross
negligence or willful misconduct. To the fullest extent permitted by applicable
law, a Member, Manager or Officer shall be entitled to indemnification from the
Company for any loss, damage or claim incurred by such Member, Manager or
Officer by reason of any act or omission performed or omitted by such Member,
Manager or Officer in good faith on behalf of the Company and in a manner
reasonably believed to be within the scope of the authority conferred on such
Member, Manager or Officer by this Agreement, except that no Member, Manager or
Officer shall be entitled to be indemnified in respect of any loss, damage or
claim incurred by such Member, Manager or Officer by reason of gross negligence
or willful misconduct with respect to such acts or omissions.
17. Assignments. A Member may assign in whole or in part its limited
liability company interest by a written instrument executed by the Member. If a
Member transfers all of its interest in the Company pursuant to this Section,
the transferee shall be admitted to the Company upon its execution of an
instrument signifying its agreement to be bound by the terms and conditions of
this Agreement. Such admission shall be deemed effective immediately prior to
the transfer, and, immediately following such admission, the transferor Member
shall cease to be a member of the Company.
18. Admission of Additional Members. One (1) or more additional members of
the Company may be admitted to the Company with the written consent of the
Member.
19. Dissolution.
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a. The Company shall be dissolved upon the occurrence of any of the
following events: (i) the occurrence of events specified in writing in the
articles of organization; (ii) by the written consent of the Member in
accordance with Ohio Revised Code Section 1705.43(A)(3); or (iii) upon entry of
a decree of judicial dissolution under Ohio Revised Code Section 1705.47, as
amended.
b. As soon as possible following the occurrence of any of the events
specified in this Section effecting the dissolution of the Company, the
appropriate representative of the Company shall execute Articles of Dissolution
to dissolve the Company in such form as shall be prescribed by the Ohio
Secretary of State and file same with the Ohio Secretary of State's office.
c. The bankruptcy of the Member will not cause the Member to cease to
be a member of the Company and upon the occurrence of such an event, the
business of the Company shall continue without dissolution.
d. In the event of dissolution, the Company shall conduct only such
activities as are necessary to wind up its affairs (including the sale of the
assets of the Company in an orderly manner), and the assets of the Company shall
be applied in the manner, and in the order of priority, set forth in Section
1705.46 of the Act.
20. Separability of Provisions. Each provision of this Agreement shall be
considered separable and if for any reason any provision or provisions herein
are determined to be invalid, unenforceable or illegal under any existing or
future law, such invalidity, unenforceability or illegality shall not impair the
operation of or affect those portions of this Agreement which are valid,
enforceable and legal.
21. Entire Agreement. This Agreement constitutes the entire agreement of
the Member with respect to the subject matter hereof.
22. Governing Law. This Agreement shall be governed by, and construed
under, the laws of the State of Ohio (without regard to conflict of laws
principles), all rights and remedies being governed by said laws.
23. Amendments. This Agreement may not be modified, altered, supplemented
or amended except pursuant to a written agreement executed and delivered by the
Member.
24. Sole Benefit of Member. The provisions of this Agreement are intended
solely to benefit the Member and, to the fullest extent permitted by applicable
law, shall not be construed as conferring any benefit upon any creditor of the
Company (and no such creditor shall be a third-party beneficiary of this
Agreement), and the Member shall have no duty or obligation to any creditor of
the Company to make any contributions or payments to the Company.
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby,
has duly executed this Agreement as of the date first written above.
MEMBER
GAMECO, INC.,
a Delaware corporation
By: /s/ Jeffrey P. Jacobs, President
----------------------------------
Jeffrey P. Jacobs, President
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Schedule A
to DIVERSIFIED OPPORTUNITIES GROUP LTD.,
Limited Liability Company Operating Agreement
MEMBER
Percentage
Name Mailing Address Interest
- ---- --------------- --------
Gameco, Inc. 240 Main Street, Box 21 100%
Black Hawk, Colorado 80422
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