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INVESTOR'S LETTER
EXHIBIT K
TO
PARTICIPATION AGREEMENT
FORM OF INVESTOR'S LETTER
INVESTOR'S LETTER
[Date]
First Security Trust Company of Nevada,
not in its individual capacity
but solely as Trustee
000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Xxxxxx Financial Leasing, Inc.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
Unless the context otherwise requires, capitalized terms used in this
letter and not otherwise defined herein shall have the meanings assigned thereto
in Appendix 1 to that certain Participation Agreement (the "Participation
Agreement"), dated as of May 28, 1999, among the Lenders identified therein,
Stratosphere Gaming Corp., as Lessee, Stratosphere Corporation, as Guarantor,
First Security Trust Company of Nevada, as Trustee, and Xxxxxx Financial
Leasing, Inc., as Agent.
The undersigned has agreed to purchase the Note numbered Note No. ,
dated May 28, 1999 and in an original principal amount of
Dollars ($ ) from , and desires that Borrower shall
execute and deliver to the undersigned a new Note in the principal amount of
$ in the name of the undersigned.
The undersigned hereby represents and warrants as of the date hereof to
the addressees hereof as follows:
(a) The Note is being purchased by the undersigned with its general
assets, and not directly or indirectly with the assets of, or in connection with
any arrangement or understanding by it in any way involving, any Plan (or its
related trust), as defined in Section 3(3) of ERISA, or with the assets of any
such plan. (or its related trust), as defined in Section 4975(e)(1) of the Code
(other than a governmental plan, as defined in Section 3(32) of ERISA), with
respect to which Lessee or such Lender or any of their Affiliates is a party in
interest within the meaning of ERISA or a "disqualified person" within the
meaning of the Code;
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INVESTOR'S LETTER
(b) The Note is being acquired by the undersigned for its own
account for investment and not with a view to any distribution (as such term is
used in Section 2(11) of the Securities Act) thereof, and if in the future it
should decide to dispose of its interest in the Note, it understands that it may
do so only in compliance with the Securities Act and the rules and regulations
of the SEC thereunder and any applicable state securities laws. Neither it nor
anyone authorized to act on its behalf has taken or will take any action which
would subject the issuance or sale of any Note, the Trust Estate (including the
Equipment constituting a part thereof), the Collateral or the Lease to the
registration requirements of Section 5 of the Securities Act. No representation
or warranty contained in this clause (b) shall include or cover any action or
inaction of Lessee or any Affiliate thereof, whether or not purportedly on
behalf of any Lender, Agent, Trustee or any of their Affiliates. Subject to the
foregoing, it is understood among the parties that the disposition of each
Lender's property shall be at all times within its control;
(c) Neither the undersigned nor any Person authorized to act on its
behalf has directly or indirectly offered to sell any interests in the Trust
Estate, the Note or any security similar thereto, to, or otherwise approved or
negotiated with respect thereto with, anyone other than the Lenders, and neither
it nor any Person authorized to act on its behalf will so offer or sell in
violation of Section 5 of the Securities Act or any securities or blue sky law
of any applicable jurisdiction;
(d) The representations and warranties set forth in Section 4.2 of
the Participation Agreement are accurate with respect to the undersigned and
that, as of the date hereof, it is entitled to receive payments of the principal
amount of the Loans under the Operative Documents without deduction or
withholding of any United States federal income taxes.
The undersigned acknowledges that by execution of this letter it shall
be bound by all obligations (whether or not accrued) under, and shall have
become a party to, all Operative Documents to which its transferor was a party.
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INVESTOR'S LETTER
The undersigned understands that the Note has not been and will not be
registered or qualified under the Securities Act or any securities or "blue sky"
laws of any jurisdiction and that no Lender has an obligation to effect such
registration or otherwise assist in the disposition of the Note.
Very truly yours,
By: ________________________________
Name:
Title:
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