Exhibit 3.35
AMENDMENT TO OPERATING AGREEMENT
OF BLACK HAWK/XXXXXX ENTERTAINMENT, LLC
THIS AMENDMENT TO OPERATING AGREEMENT (this "Amendment") is
made and entered into as of the 22nd day of February, 2002, by and among Black
Hawk Gaming & Development Company, Inc., a Colorado corporation ("Black Hawk")
and Diversified Opportunities Group Ltd., an Ohio limited liability company
("Diversified").
RECITALS:
A. Black Xxxx, XX Entertainment Ltd., an Ohio limited
liability company ("Entertainment") and Diversified entered into an Operating
Agreement made as of the 12th day of November, 1996, as amended by the Amendment
to Operating Agreement made and entered into as of the 22nd day of January, 1997
(together, the "Initial Operating Agreement") for the purposes of joining
together to form Black Hawk/Xxxxxx Entertainment, LLC, a Colorado limited
liability company (the "Company").
B. As of the date hereof, all right, title and interest in
Entertainment's 24% Membership Interest was transferred to Diversified pursuant
to the liquidation and dissolution of Entertainment making Diversified the owner
of 25% of the Membership Interest.
C. Black Hawk and Diversified desire to amend and restate the
terms and conditions of the Initial Operating Agreement to reflect the foregoing
transfer and to modify the Initial Operating Agreement in certain other
respects.
NOW, THEREFORE, the Initial Operating Agreement is hereby
amended and restated as follows:
AGREEMENTS:
In consideration of the foregoing recitals and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Black Hawk and Diversified hereby agree as follows:
1. The definition in Article I of the term "Manager" is hereby
deleted in its entirety, and the following is inserted in lieu thereof:
"Manager" shall mean Black Hawk or any other Person that
accompanies or succeeds it in that capacity in accordance with this Operating
Agreement.
2. The definition in Article I of the term "Member" is hereby
deleted in its entirety, and the following is inserted in lieu thereof:
"Member" shall mean each of Black Hawk and Diversified in
their capacities as Members, and thereafter shall mean each of the foregoing so
long as it remains a Member of the Company in accordance with the terms of this
Operating Agreement, and each person who may hereafter become a Member in
accordance with the terms of this Operating Agreement.
3. The definition in Article I of the term "Membership
Interest" is hereby deleted in its entirety and the following is inserted in
lieu thereof:
"Membership Interest" shall mean the entire interest of a
Member in the Company, including without limitation, the right to receive
distributions (liquidation or otherwise) and allocations of profits and losses.
Initial Membership Interests of the Members are as follows, although actual
voting, governance and other rights deriving from membership, and the allocation
of them, are subject to the specific provisions of this Operating Agreement:
Black Hawk - 75%
Diversified - 25%
4. The definition in Article I of the term "Policy Board" is
hereby deleted in its entirety and the following is inserted in lieu thereof:
"Policy Board" shall mean the board established by the Members
as contemplated by Section 5.3, which Policy Board shall have full
responsibility and authority for the operation and management of the Company's
business affairs. The Policy Board shall have four members (2 appointed by
Diversified and two appointed by Black Hawk).
5. The definition of "Tax Matters Partner" is hereby deleted
in its entirey and the following is inserted in lieu thereof:
"Tax Matters Partner" means Black Hawk.
6. Section 2.1 is hereby deleted in its entirety and the
following is inserted in lieu thereof:
SECTION 2.1 Members. The names and business addresses of the
Members are as follows:
Black Hawk Gaming & Development Company, Inc.
000 Xxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxx 00000
Diversified Opportunities Group Ltd.
000 Xxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxx 00000
7. Section 5.1(c) is hereby deleted in its entirety and the
following is inserted in lieu thereof:
(c) The Members hereby designate Black Hawk as the Manager.
8. Sections 5.3(b) and (c) are hereby deleted in their
entirety, and the following are inserted in lieu thereof:
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(b) There shall be four members of the Policy Board. The
Policy Board members and the Member of the Company appointing such individuals
are as follows:
Diversified Black Hawk
----------- ----------
1. Xxxxxxx X. Xxxxxx 1. Xxxxxxx X. Xxxxx
2. Xxxxx X. Xxxxxxxxxx 2. Xxxxxxx Xxxxxxxx
All members of the Policy Board shall serve in such capacity
without compensation from the Company. Each Member of the Company may at any
time and from time to time upon Notice to the other Members replace any of its
designees to the Policy Board should such designee die, become disabled, resign
or for any reason cease to serve on the Policy Board.
(c) [INTENTIONALLY DELETED]
9. Section 7.1(a) is hereby deleted in its entirety and the
following is inserted in lieu thereof:
(a) The parties hereto acknowledge and agree that in
accordance with Treasury Regulations 1.704-1(b)(2)(iv)(l) upon the transfer by
Entertainment of its Membership Interest in the Company to Diversified, the
capital account of Entertainment carried over to Diversified. The Capital
Account of Diversified is as set forth on Exhibit B.
10. Section 7.1(b) is hereby deleted in its entirety and the
following in inserted in lieu thereof:
(b) The Capital Account of Black Hawk is as set forth on
Exhibit B. [NEED TO UPDATE EXHIBIT B]
11. Section 15.1 is hereby deleted in its entirety and the
following is inserted in lieu thereof:
If to Black Hawk: Black Hawk Gaming & Development Company, Inc.
000 Xxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, President
Fax No. (000) 000-0000
If to Diversified: c/o Gameco, Inc.
000 Xxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, President
Fax No. (000) 000-0000
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With a copy to:
Xxxxx & Xxxxxxxxx LLP
3200 National City Centre
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Fax No. (000) 000-0000
11. Section 15.19 is hereby deleted in its entirety.
12. No Other Modifications. Except as modified herein, all
other terms and conditions of the Initial Operating Agreement shall remain
unaffected and in full force and effect.
13. Binding Effect: Governing Law. This Amendment shall bind
and inure to the benefit of the parties hereto and their respective successors
and assigns, and shall be governed by and construed in accordance with the laws
of the State of Colorado.
14. Counterparts. This Amendment may be executed in
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized officers as of the
date first above written.
BLACK HAWK GAMING &
DEVELOPMENT COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Print Name: Xxxxxxx X. Xxxxx
Title: President
DIVERSIFIED OPPORTUNITIES GROUP LTD.
By: GAMECO, INC., Its Sole Member
-----------------------------
Xxxxxxx X. Xxxxxx, President
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