Management Fees Subordination Agreement, dated as of December 12, 2004



 Exhibit 10.104 
  
 MANAGEMENT FEES SUBORDINATION AGREEMENT 
 Dated as of December 14, 2004 
  
 This MANAGEMENT FEES SUBORDINATION AGREEMENT (this “Agreement”) is made by Wynn Resorts, Limited, a Nevada corporation (“Wynn Resorts”), Wynn Las Vegas, LLC, a Nevada limited liability company
(“Wynn Las Vegas”), Wynn Las Vegas Capital Corp., a Nevada corporation (“Wynn Capital” and, together with Wynn Las Vegas, the “Issuers”) and those subsidiaries of Wynn Las Vegas listed on Exhibit
A hereto (together with the Issuers, the “Wynn Entities”) in favor of (a) Deutsche Bank Trust Company Americas, as administrative agent (the “Administrative Agent”) for the lenders under the Bank Credit
Agreement (as defined below), and (b) U.S. Bank National Association, as trustee (the “Trustee”) for the benefit of the holders of the first mortgage notes (the “First Mortgage Notes”) issued pursuant to the First
Mortgage Notes Indenture (as defined below). 
  
 PRELIMINARY
STATEMENTS: 
  
 1. Wynn Resorts and the Wynn Entities propose
to develop and own the Wynn Las Vegas Casino Resort, a hotel and casino resort, with related parking structure and golf course facilities to be developed on the Project site, all as more particularly described in the applicable exhibits to the
Disbursement Agreement (the “Project”). 
  
 2.
The Wynn Entities desire to finance the development and construction of the Project with, among other things, (a) the proceeds of the issuance by the Issuers of the First Mortgage Notes and (b) borrowings by and other extensions of credit to Wynn
Las Vegas under the Bank Credit Agreement. 
  
 3. It is a
condition to the issuance of the First Mortgage Notes and the borrowings and other extensions of credit under the Bank Credit Agreement that Wynn Resorts and each of the Wynn Entities shall have executed and delivered this Agreement. 
  
 4. The Wynn Entities have entered into a Management Agreement, dated as of
the date hereof (the “Management Agreement”), with Wynn Resorts pursuant to which Wynn Resorts will provide certain management services to the Wynn Entities. 
  
 5. Wynn Resorts acknowledges that it will receive direct and indirect benefits from the issuance of the First Mortgage Notes
and the borrowings and other extensions of credit under the Bank Credit Agreement, and the use of the respective proceeds thereof in connection with the development, construction and operation of the Project. 







 NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 
  
 ARTICLE 1. 
 SUBORDINATION 
  
 SECTION 1.01. Certain Definitions. For purposes of this
Agreement, the following terms shall have the meanings set forth below: 
  
 “Applicable Representative” means (1) until either the Senior Debt in respect of the Bank Credit Agreement or the Senior Debt in respect of the First Mortgage Notes Indenture has been fully discharged
in accordance with the provisions of the documents governing such Senior Debt, the Collateral Agent under the Intercreditor Agreement, (2) after the Senior Debt in respect of the Bank Credit Agreement has been fully discharged in accordance with the
provisions of the Bank Credit Agreement, but prior to the discharge of all Senior Debt under the First Mortgage Notes Indenture, the Trustee under the First Mortgage Notes Indenture, and (3) after the Senior Debt under the First Mortgage Notes
Indenture has been fully discharged in accordance with the provisions of the First Mortgage Notes but prior to the discharge of all Senior Debt under the Bank Credit Agreement, the Administrative Agent under the Bank Credit Agreement. 
  
 “Bank Credit Agreement” means the Credit Agreement dated as
of the date hereof, among Wynn Las Vegas, Deutsche Bank Trust Company Americas, as administrative agent, and the lenders from time to time parties thereto, as such Credit Agreement may be amended, modified or supplemented from time to time,
including, without limitation, amendments, modifications, supplements and restatements thereof giving effect to increases, renewals, extensions, refundings, deferrals, restructurings, replacements or refinancings of, or additions to, the
arrangements provided in such Credit Agreement (whether or not provided by the original agents and lenders under such Credit Agreement). 
  
 “Business Day” means any day other than a Legal Holiday. 
  
 “Collateral Agent” means Deutsche Bank Trust Company Americas, as collateral agent under the Intercreditor
Agreement. 
  
 “First Mortgage Notes Indenture”
means the Indenture, dated as of the date hereof, among the Issuers, as joint and several obligors, certain subsidiaries Wynn Las Vegas (including those subsidiaries of Wynn Las Vegas listed on Exhibit A hereto), as guarantors, and U.S. Bank,
National Association, as trustee, as such Indenture may be amended, modified or supplemented from time to time, including, without limitation, amendments, modifications, supplements and restatements thereof giving effect to increases, renewals,
extensions, refundings, deferrals, restructurings, replacements or refinancings of, or additions to, the arrangements provided in such Indenture (whether or provided by the holders of the first mortgage notes). 
  
 “Intercreditor Agreement” means that certain Intercreditor
Agreement of even date herewith by and among the Administrative Agent, the Trustee and the Collateral Agent. 
  
 “Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions in the City of New York or at a place of payment are
authorized by law, regulation or executive order to remain closed; provided that if a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday. 

 

 2 








 “Management Fees” means any fees payable by any Wynn Entity to Wynn Resorts under the
Management Agreement. 
  
 “Obligations” means any
principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any indebtedness (including, without limitation, interest accruing at the then applicable rate provided
in such documentation after the maturity of such indebtedness and interest accruing at the then applicable rate provided in such documentation after the filing of a petition in bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to any debtor under such documentation, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding). 
  
 “Person” means any individual, corporation, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, limited liability company or government or other entity. 
  
 “Representative” means (a) with respect to Senior Debt under the Bank Credit Agreement, the Administrative Agent, and (b) with respect to Senior Debt under the First Mortgage Notes Indenture, the
Trustee. 
  
 “Senior Debt” means: 
  

	(1)	all indebtedness and other Obligations of Wynn Las Vegas outstanding under the Bank Credit Agreement and the other documents that from time to time evidence such indebtedness and
Obligations or secure or support payment or performance thereof, including without limitation the Security Documents (as defined in the Bank Credit Agreement), and 

  

	(2)	all indebtedness and other Obligations of the Issuers outstanding under the First Mortgage Notes Indenture and the other documents that from time to time evidence such indebtedness
and Obligations or secure or support payment or performance thereof, including without limitation the Collateral Documents (as defined in the First Mortgage Notes Indenture). 

  
 SECTION 1.02. Agreement to Subordinate. Wynn Resorts hereby
agrees that the payment of Management Fees is subordinated in right of payment, to the extent and in the manner provided in this Article 1, to the payment of Senior Debt (whether outstanding on the date hereof or hereafter created, incurred, assumed
or guaranteed), and that the subordination is for the benefit of the holders of Senior Debt. In furtherance of such subordination, Wynn Resorts and the Wynn Entities agree as follows: 
  
 (a) Management Fees from time to time accruing under the Management Agreement shall accrue but shall not be paid until the
tenth (10th) Business Day immediately succeeding each June 1st and December 1st of each calendar year; and 
  

 3 








 (b) no Wynn Entity shall make any payment or distribution to Wynn Resorts in respect of Management Fees
at any time that such payment or distribution is not permitted under the terms of the Bank Credit Agreement or the First Mortgage Notes Indenture. Each Wynn Entity further acknowledges and agrees that it is familiar with the terms of the Bank Credit
Agreement and the First Mortgage Notes Indenture, and that such Wynn Entity shall be responsible for staying informed as to any amendments, waivers or other modifications affecting such documents, and as to the status of performance under such
documents. 
  
 Notwithstanding anything to the contrary contained in the
Management Agreement or elsewhere, a failure of the Wynn Entities to pay any Management Fee to Wynn Resorts when the same becomes due and owing as a result of this Agreement (whether pursuant to this Section 1.02 or otherwise) shall not (x) be
deemed a default or event of default, or otherwise provide the basis for a termination or other remedial action, under the Management Agreement or (y) permit Wynn Resorts to collect any additional amounts under the Management Agreement with respect
to such Management Fees (it being agreed by the parties hereto that any such unpaid amounts shall accrue under the Management Agreement without fine or other penalty (other than interest charged on any such unpaid amounts in accordance with the
Management Agreement) until the same are permitted to be paid in accordance with this Agreement). 
  
 SECTION 1.03. Liquidation; Dissolution; Bankruptcy. Upon any distribution to creditors of any Wynn Entity in a liquidation or dissolution of
such Wynn Entity or in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to such Wynn Entity or its property, in an assignment for the benefit of creditors or any marshaling of such Wynn Entity’s assets and
liabilities: 
  
 (a) holders of Senior Debt will be entitled to
receive payment in full of all Obligations due in respect of such Senior Debt (including interest after the commencement of any bankruptcy proceeding at the rate specified in the applicable Senior Debt) before Wynn Resorts will be entitled to
receive any payment of Management Fees; and 
  
 (b) until all
Obligations with respect to Senior Debt (as provided in clause (a) above) are paid in full, any payments of Management Fees to which Wynn Resorts would be entitled but for this Article 1 will be made to the Applicable Representative. 
  
 SECTION 1.04. Pay Over of Distributions. In the event that Wynn
Resorts receives any payment of Management Fees at a time that such payment is prohibited by this Agreement, such payment will be held by Wynn Resorts, in trust for the benefit of, and will be paid forthwith over and delivered, upon written request,
to the Applicable Representative for handling in accordance with the Intercreditor Agreement. 
  
 SECTION 1.05. Application of Amounts Received by Applicable Representative. This Article 1 defines the relative rights of Wynn Resorts and holders of Senior Debt. Nothing in this Agreement will:

  
 (a) impair, as between the Wynn Entities and Wynn Resorts,
the obligation of the Wynn Entities, which is absolute and unconditional, to pay Management Fees in accordance with the terms of the Management Agreement; or 
  

 4 








 (b) affect the relative rights of Wynn Resorts and creditors of the Wynn Entities other than their rights
in relation to holders of Senior Debt. 
  
 SECTION 1.06.
Subordination May Not Be Impaired by the Wynn Entities. No right of any Representative or holder of Senior Debt to enforce the subordination of the Management Fees may be impaired by any act or failure to act by any Wynn Entity or by the
failure of any Wynn Entity to comply with this Agreement. 
  
 SECTION 1.07. Distribution or Notice to Representative. Whenever a notice is to be given to holders of Senior Debt pursuant to this Agreement, the notice shall be given to the Representative of such Senior Debt. Upon any
payment or distribution of assets of any Wynn Entity referred to in this Article 1, Wynn Resorts will be entitled to rely upon any order or decree made by any court of competent jurisdiction or upon any certificate of the Applicable Representative
or the liquidating trustee or agent or other Person making any distribution to Wynn Resorts for the purpose of ascertaining the Persons entitled to participate in such distribution, the holders of the Senior Debt and other indebtedness of such Wynn
Entity, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article 1. 
  
 ARTICLE 2. 
 REPRESENTATIONS AND
WARRANTIES 
  
 SECTION 2.01. Representations and
Warranties. Each of Wynn Resorts and the Wynn Entities hereby represents and warrants as follows, severally and not jointly: 
  
 (a) Authority. Such Person has the requisite corporate or limited liability company power and authority to execute and deliver this Agreement and
to perform its obligations hereunder. The execution, delivery and performance by such Person of this Agreement have been duly approved by all necessary corporate or limited liability company action of such Person and no other corporate or limited
liability company proceedings on the part of such Person are necessary to consummate the transactions contemplated by this Agreement. 
  
 (b) Enforceability. This Agreement has been duly executed and delivered by such Person. This Agreement is the legal, valid and binding obligation
of such Person, enforceable against such Person in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’
rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law). 
  
 ARTICLE 3. 
 MISCELLANEOUS

  
 SECTION 3.01. Counterparts. This Agreement
may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute but one and the
same agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile shall be effective as delivery of a manually executed counterpart of this Agreement. 
  

 5 








 SECTION 3.02. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. 
  
 SECTION 3.03. Choice of Law; Jurisdiction; Waivers. This Agreement shall be governed by and construed in accordance with the laws of the
State of New York, including, without limitation, Section 5-1401 of the New York General Obligations Law. To the fullest extent permitted by applicable law, Wynn Resorts hereby irrevocably submits to the non-exclusive jurisdiction of any New York
State court or Federal court sitting in the County of New York in respect of any suit, action or proceeding arising out of or relating to the provisions of this Agreement and irrevocably agrees that all claims in respect of any such suit, action or
proceeding may be heard and determined in any such court. The parties hereto hereby waive, to the fullest extent permitted by applicable law, any objection that they may now or hereafter have to the laying of venue of any such suit, action or
proceeding brought in any such court, and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. The parties hereto hereby waive, to the fullest extent permitted by applicable law, any
right to trial by jury with respect to any action or proceeding arising out of or relating to this Agreement. 
  
 SECTION 3.04. Notices; Identities of Representatives. All notices, requests and demands to or upon the respective parties hereto to be
effective shall be in writing (including by telecopy), and, unless otherwise expressly provided herein, shall be deemed to have been given or made when delivered, or three Business Days after being deposited in the mail, postage prepaid, or, in the
case of telecopy notice, when received, addressed (a) in the case of Wynn Resorts or any Wynn Entity, as follows, and (b) in the case of the Representatives, as follows: 
  

			
	 Wynn Resorts
	  	 Wynn Resorts, Limited
 3131 Las Vegas Boulevard
South
 Las Vegas, Nevada 89109
 Attention: President

Telephone: (702) 770-7000
 Facsimile: (702) 770-1100

		
	 Wynn Entities:
	  	 c/o Wynn Las Vegas, LLC
 3131 Las Vegas Boulevard
South
 Las Vegas, Nevada 89109
 Attention: President

Telephone: (702) 770-7000
 Facsimile: (702) 770-1100

		
	in the case of Wynn Resorts or any Wynn Entity, with a copy to	  	 Wynn Resorts, Limited
 3131 Las Vegas Boulevard
South
 Las Vegas, Nevada 89109
 Attention: General
Counsel
 Telephone: (702) 770-7000
 Facsimile: (702)
770-1520


  

 6 









			
	Administrative Agent under the Bank Credit Agreement	  	 Deutsche Bank Trust Company Americas
 200 Crescent
Court, Suite 550
 Dallas, TX 75201
 Attention: Gerard
Dupont
 Telecopy: (214) 740-7910
 Telephone: (214)
740-7913

		
	Collateral Agent under the Intercreditor Agreement	  	 Deutsche Bank Trust Company Americas
 60 Wall Street,
27th Floor
 New York, NY 10005
 Attention: Estelle
Lawrence
 Telephone: (212) 250-2498
 Facsimile: (732)
578-4636

		
	Trustee under the First Mortgage Notes:	  	 U.S. Bank National Association
 Corporate Trust
Department
 EP-MN-WS3C
 60 Livingston Avenue
 St. Paul, MN 55107-2292
 Telecopier No.: (651) 495-8097
 Attention: Lorianne Rosenberg,
 Corporate Trust Services


  
 A party may change its
address for notices hereunder by written notice to the other parties to this Agreement. Further, by written notice to the other parties to this Agreement, a Representative with respect to Senior Debt may inform the other parties to this Agreement as
to a change in the identity of the Representative for such Senior Debt, and the other parties to this Agreement thereafter shall have the right to treat the successor Representative identified in such notice as the Representative with respect to
such Senior Debt. 
  
 SECTION 3.05. Attorneys’ Fees and
Costs. In the event of a dispute hereunder, if any party refers this Agreement to an attorney to continue or enforce the provisions of this Agreement, the prevailing party in any such dispute shall be entitled to an award of all costs and
expenses (including attorneys’ fees) incurred in connection with the dispute. 
  
 [Signature Page Follows] 
  

 7 








 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written
above. 
  

							
	WYNN LAS VEGAS, LLC,
	a Nevada limited liability company
		
	By:	 	Wynn Resorts Holdings, LLC,
	 	 	a Nevada limited liability company,
	 	 	its sole member
			
	 	 	By:	 	Wynn Resorts, Limited,
	 	 	 	 	a Nevada corporation,
	 	 	 	 	its sole member
				
	 	 	 	 	By:	 	 /s/ Marc H. Rubinstein


	 	 	 	 	 	 	Marc H. Rubinstein
	 	 	 	 	 	 	Senior Vice President

  

									
	 WYNN SHOW PERFORMERS, LLC,

	 a Nevada limited liability company

		
	By:	 	Wynn Las Vegas, LLC,
	 	 	a Nevada limited liability company,
	 	 	its sole member
			
	 	 	By:	 	Wynn Resorts Holdings, LLC,
	 	 	 	 	a Nevada limited liability company,
	 	 	 	 	its sole member
				
	 	 	 	 	By:	 	Wynn Resorts, Limited,
	 	 	 	 	 	 	a Nevada corporation,
	 	 	 	 	 	 	its sole member
					
	 	 	 	 	 	 	By:	 	 /s/ Marc H. Rubinstein


	 	 	 	 	 	 	 	 	Marc H. Rubinstein
	 	 	 	 	 	 	 	 	Senior Vice President

  

					
	 WYNN LAS VEGAS CAPITAL CORP.,

	 a Nevada corporation

			
	 	 	By:	 	 /s/ Marc H. Rubinstein


	 	 	 	 	Marc H. Rubinstein
	 	 	 	 	Senior Vice President









									
	 WYNN GOLF, LLC,

	 a Nevada limited liability company

		
	By:	 	Wynn Las Vegas, LLC,
	 	 	a Nevada limited liability company,
	 	 	its sole member
			
	 	 	By:	 	Wynn Resorts Holdings, LLC,
	 	 	 	 	a Nevada limited liability company,
	 	 	 	 	its sole member
				
	 	 	 	 	By:	 	Wynn Resorts, Limited,
	 	 	 	 	 	 	a Nevada corporation,
	 	 	 	 	 	 	its sole member
					
	 	 	 	 	 	 	By:	 	 /s/ Marc H. Rubinstein


	 	 	 	 	 	 	 	 	Marc H. Rubinstein
	 	 	 	 	 	 	 	 	Senior Vice President

  

									
	 WORLD TRAVEL, LLC,

	 a Nevada limited liability company

		
	By:	 	Wynn Las Vegas, LLC,
	 	 	a Nevada limited liability company,
	 	 	its sole member
			
	 	 	By:	 	Wynn Resorts Holdings, LLC,
	 	 	 	 	a Nevada limited liability company,
	 	 	 	 	its sole member
				
	 	 	 	 	By:	 	Wynn Resorts, Limited,
	 	 	 	 	 	 	a Nevada corporation,
	 	 	 	 	 	 	its sole member
					
	 	 	 	 	 	 	By:	 	 /s/ Marc H. Rubinstein


	 	 	 	 	 	 	 	 	Marc H. Rubinstein
	 	 	 	 	 	 	 	 	Senior Vice President









									
	 LAS VEGAS JET, LLC,

	 a Nevada limited liability company

		
	By:	 	Wynn Las Vegas, LLC,
	 	 	a Nevada limited liability company,
	 	 	its sole member
			
	 	 	By:	 	Wynn Resorts Holdings, LLC,
	 	 	 	 	a Nevada limited liability company,
	 	 	 	 	its sole member
				
	 	 	 	 	By:	 	Wynn Resorts, Limited,
	 	 	 	 	 	 	a Nevada corporation,
	 	 	 	 	 	 	its sole member
					
	 	 	 	 	 	 	By:	 	 /s/ Marc H. Rubinstein


	 	 	 	 	 	 	 	 	Marc H. Rubinstein
	 	 	 	 	 	 	 	 	Senior Vice President

  

									
	 WYNN SUNRISE, LLC,

	 a Nevada limited liability company

		
	By:	 	Wynn Las Vegas, LLC,
	 	 	a Nevada limited liability company,
	 	 	its sole member
			
	 	 	By:	 	Wynn Resorts Holdings, LLC,
	 	 	 	 	a Nevada limited liability company,
	 	 	 	 	its sole member
				
	 	 	 	 	By:	 	Wynn Resorts, Limited,
	 	 	 	 	 	 	a Nevada corporation,
	 	 	 	 	 	 	its sole member
					
	 	 	 	 	 	 	By:	 	 /s/ Marc H. Rubinstein


	 	 	 	 	 	 	 	 	Marc H. Rubinstein
	 	 	 	 	 	 	 	 	Senior Vice President









			
	 WYNN RESORTS, LIMITED,

	 a Nevada corporation

		
	 By:
	 	 /s/ Marc H. Rubinstein


	 Name:
	 	Marc H. Rubinstein
	 Title:
	 	Senior Vice President
	
	 U.S. BANK NATIONAL ASSOCIATION,

	 as Trustee

		
	 By:
	 	 /s/ Lori Anne Rosenberg


	 Name:
	 	Lori Anne Rosenberg
	 Title:
	 	Vice President
	
	DEUTSCHE BANK TRUST COMPANY AMERICAS,
	 as Administrative Agent

		
	 By:
	 	 /s/ Steven P. Lapham


	 Name:
	 	Steven P. Lapham
	 Title:
	 	Managing Director
		
	 By:
	 	 /s/ Brenda Casey


	 Name:
	 	Brenda Casey
	 Title:
	 	Vice President








 Exhibit A 
  

	1.	Wynn Show Performers, LLC, a Nevada limited liability company. 

  

	2.	Wynn Golf, LLC, a Nevada limited liability company. 

  

	3.	World Travel, LLC, a Nevada limited liability company. 

  

	4.	Las Vegas Jet, LLC, a Nevada limited liability company. 

  

	5.	Wynn Sunrise, LLC, a Nevada limited liability company.