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Exhibit 10.6    
  


 
 

FIFTH AMENDMENT TO ASSET AND
  LAND PURCHASE AGREEMENT    
  


        This FIFTH AMENDMENT TO ASSET AND LAND PURCHASE AGREEMENT ("Fifth Amendment") is executed as of the
3RD day of November, 2000 by and among STARWOOD HOTELS & RESORTS WORLDWIDE, INC., SHERATON GAMING CORPORATION and SHERATON SGC SUB CORPORATION (f/k/a SHERATION DESERT INN
CORPORATION) (collectively, "Sellers") and VALVINO LAMORE, LLC, STEPHEN A. WYNN, RAMBAS MARKETING CO., LLC. and DESERT INN WATER COMPANY, LLC
(collectively, "Purchaser"). 


RECITALS  


        A.    The
parties are signatory to that certain Asset and Land Purchase Agreement dated as of April 28, 2000, as amended by First Amendment dated May 26, 2000,
Second Amendment dated June 16, 2000, Third Amendment dated as of June 22, 2000 ("Third Amendment") and Fourth Amendment dated as of
October 27, 2000 (all such documents collectively, as so amended, the "Agreement"). 


        B.    Closing
as defined under the Agreement has occurred, Sellers have submitted the Updated Calculation, Purchaser has submitted its calculation of Closing Net Working
Capital, each as defined in the Agreement; Seller has informally objected thereto, and the parties are in substantial dispute with respect to numerous items affecting the calculation of Closing Net
Working Capital. 


        C.    The
parties desire to resolve all such disputes, to amend the Agreement to clarify Paragraph 5.6 thereof, and also to make several other changes to the Agreement. 


        NOW,
THEREFORE, in consideration of the foregoing Recitals, the covenants and agreements set forth below and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby agree as follows: 


AMENDMENT  



          1.    Definitions.    Capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms
in the Agreement. 


          2.    New Members in Valvino Lamore, LLC.    Nothing contained in Paragraph 5.6 nor in any other provision of
the Agreement shall be construed to require Parent's or Sellers' consent to, or otherwise preclude the admission by Valvino Lamore, LLC, of one or more members in addition to Stephen A. Wynn, so long
as Stephen A. Wynn remains in control of Valvino Lamore, LLC, either as its sole Manager or, if Valvino Lamore, LLC, is later governed by a Board of Managers, as the controlling member of such Board
of Managers. 


          3.    Deficit Amount.    The Deficit Amount referred to in Section 1.5(d) is hereby conclusively deemed for
all purposes to be the sum of $1,000,000, inclusive of interest accruing through the fifth (5th) business day following execution and delivery by Sellers and Purchaser of this Fifth Amendment, and,
accordingly, Parent will, within such five (5) Business Day period, pay to Valvino Lamore, LLC, the sum of $1,000,000 in full satisfaction of any and all obligations of Sellers to pay the
Deficit Amount and interest thereon. Each party acknowledges that the foregoing figure represents the settlement of a substantial dispute, and that neither Purchaser nor Sellers have agreed to the
calculations of the other. Each party, having had the opportunity to review the calculations of the other with its accountants and legal counsel, has agreed on the settlement described above.
Accordingly, notwithstanding any future discovery of the existence or amount of any fact, circumstance, condition, asset, obligation or liability (collectively, "New
Information"), knowledge of which New Information would or could have affected either Sellers' or Purchaser's willingness to enter into this Fifth Amendment, there shall be no
further adjustment of Closing Net Working Capital nor any liability on the part of the either Sellers or Purchaser on account of any such New Information. Without limitation of the foregoing, Sellers' 





 




indemnity obligations, whether pursuant to Paragraph 9.3 of the Agreement or otherwise, shall not extend to or be affected by any New Information which could or might have affected the
calculation of Closing Net Working Capital, nor shall any such New Information be included in the calculation of Sellers' Threshold Amount pursuant to Paragraph 9.3(b) of the Agreement. Sellers
and Purchaser waive
to the full extent permitted by law any provision of any applicable law which would otherwise afford either of them the ability to assert any liability on the part of the other by reason of any such
New Information. 


          4.    Receivables Payment.    Notwithstanding the provisions of Paragraph 3, above, concurrently with Sellers'
payment of the Deficit Amount, Sellers shall pay to Purchaser the sum of $346,871 (the "Receivables Payment"), representing reimbursement to Purchaser
for funds erroneously paid to Sellers after the Closing in the gross amount of $361,978 by account debtors or credit card companies on account of Accounts Receivable of the Business purchased by
Purchaser, less credit card fees of $15,107 paid by Sellers with respect thereto. Upon payment of the Receivables Payment, Purchaser forever releases and discharges Sellers from any and all further
obligations with respect to the Accounts Receivable as of September 30, 2000; provided, however, that Sellers shall continue to account to Purchaser for any collections that Sellers may receive
after September 30, 2000, on account of the Accounts Receivable, and that Purchaser will account to Sellers for any credit card charges paid by Sellers after September 30, 2000 with
respect to Accounts Receivable. 


          5.    Long-Distance Telephone Charges.    Purchaser acknowledges that at Purchaser's request, Sellers
refrained until recently from canceling Sellers' contract for long-distance telephone service from the Property. Without limiting its obligations under the Agreement as in effect
immediately prior to execution of this Fifth Amendment, Purchaser confirms its obligation and agreement to indemnify and hold Sellers harmless from any and all claims, demands, damages, losses,
liabilities, costs and expenses, arising out of the continuation of that contract (insofar as the same applied to the Property) from and after the Closing. 


          6.    Availability of Certain Books and Records.    Purchaser shall make available to Sellers the books and records
of the Business pertaining to periods ending prior to June 23, 2000, including, without limitation, all cancelled checks, bank statements, marker information and bank reconciliations applicable
to operations of the Business through June 22, 2000. Upon request by Sellers, Purchaser will copy any such books and records and deliver same to Sellers, the costs of such copying and delivery
to be shared equally between Purchaser and Sellers. 


          7.    Cooperation in Audits.    Without limiting Purchaser's obligations pursuant to Paragraphs 6.7
(Post-Closing Cooperation) and 10.3 (Cooperation) of the Agreement, Purchaser acknowledges Sellers' current need for assistance from Mark LeFever and Marc Rubinstein in connection with
currently pending income tax and gaming tax audits of Sellers' operation of the Business, and Seller's obligation under applicable Gaming Laws to file final financial statements for the Business as
conducted by Sellers through and including June 22, 2000. Accordingly, for so long as either may continue to be employed by Purchaser, Purchaser will make Mark LeFever and Marc Rubinstein
available for consultation with Sellers and authorize Mark LeFever to execute a financial representation letter to Arthur Andersen in customary form to the effect that such final statements are true
and correct to the best of his knowledge and belief. 


          8.    Further Assurances.    The parties agree to execute such further documents and take such further actions as may
be necessary or reasonably requested by either Sellers or Purchaser to effectuate the purposes of this Amendment. 



          9.    Continued Force and Effect.    As amended hereby, the Agreement shall continue in full force and effect, and
this Fifth Amendment shall constitute a part of the Agreement. All references in the Agreement to itself shall be deemed references to the Agreement as amended hereby. 


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        10.    Counterparts.    This Fifth Amendment may be signed in one or more counterparts, each of which shall be deemed
to be an original, and all such counterparts shall constitute but one instrument. Facsimile copies hereof and facsimile signatures hereon shall have the force and effect of originals. 


        IN
WITNESS WHEREOF, the undersigned have caused this Fifth Amendment to Asset and Land Purchase Agreement to be executed by their officers thereunder duly authorized, as of the day and
year first above written. 



	 	 	STARWOOD HOTELS & RESORTS WORLDWIDE, INC.

  
	

 	
 	

By:	
 	

/s/  THOMAS M. SMITH      
	 	 	 	 	
 Name:    Thomas M. Smith

Title:    Vice-President
	

 	
 	

SHERATON GAMING CORPORATION

  
	

 	
 	

By:	
 	

/s/  THOMAS M. SMITH      
	 	 	 	 	
 Name:    Thomas M. Smith

Title:    Vice-President
	

 	
 	

SHERATON SGC SUB COPORATION

f/k/a SHERATON DESERT INN CORPORATION

  
	

 	
 	

By:	
 	

/s/  THOMAS M. SMITH      
	 	 	 	 	
 Name:    Thomas M. Smith

Title:    President
	

 	
 	

VALVINO LAMORE, LLC

  
	

 	
 	

By:	
 	

/s/  STEPHEN A. WYNN      
	 	 	 	 	
 Name:    Stephen A. Wynn

Title:    Manager

  
	

 	
 	

 	
 	

/s/  STEPHEN A. WYNN      
 Stephen A. Wynn, an individual
	

 	
 	

DESERT INN WATER COMPANY, LLC,

a Nevada limited liability company

  
	

 	
 	

By:	
 	

/s/  STEPHEN A. WYNN      
	 	 	 	 	
 Name:    Stephen A. Wynn

Title:    Sole Member




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RAMBAS MARKETING CO., LLC,

a Nevada limited liability company
	

 	
 	

By:	
 	

Valvino Lamore, LLC

Its:    Sole Member

  
	

 	
 	

 	
 	

By:	
 	

/s/  STEPHEN A. WYNN      
	 	 	 	 	 	 	
 Name:    Stephen A. Wynn

Title:    Manager




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Exhibit 10.6


FIFTH AMENDMENT TO ASSET AND LAND PURCHASE AGREEMENT