Interest Rate Cap Transaction Confirmation between UBS AG and Quest Cherokee, LLC (September 21, 2004)

Summary

UBS AG, London Branch and Quest Cherokee, LLC entered into an interest rate cap agreement effective March 21, 2006, and terminating September 21, 2007. UBS AG provides a cap on the 3-month USD LIBOR rate at 5% per annum for a notional amount starting at $98,705,000 and amortizing over time. Quest Cherokee pays a fixed amount upfront, and UBS AG pays if the floating rate exceeds the cap. The agreement is governed by ISDA terms and is subject to English law unless otherwise agreed.

EX-10.4 5 qr-ex104_1119788.txt INTEREST RATE CAP TRANSACTION Exhibit 10.4 UBS Interest Rate Cap Transaction Date: 2l September 2004 To: QUEST CHEROKEE, LLC ("Counterparty") Attention: DAVID GROSE Fax No: 0014054881156 From: UBS AG, London Branch ("UBS AG") Subject: Interest Rate Cap Transaction UBS AG Ref 37014557 Dear Sirs The purpose of this communication is to confirm the terms and conditions of the Transaction entered into between us on the Trade Date specified below. This Confirmation constitutes a "Confirmation" as referred to in the Master Agreement or Agreement specified below. The definitions contained in the 2000 ISDA Definitions as published by the International Swaps and Derivatives Association, Inc., are incorporated into this Confirmation. In the event of any inconsistency between any of the definitions listed above and this Confirmation, this Confirmation will govern. If you and we are parties to a master agreement that governs transactions of this type (whether in the form of the ISDA Master Agreement (Multicurrency-Cross Border)(the "ISDA Form") or any other form (a "Master Agreement"), then this Confirmation will supplement, form a part of, and be subject to that Master Agreement. If you and we are not parties to such a Master Agreement, then you and we agree to use all reasonable efforts promptly to negotiate, execute and deliver an agreement in the form of the ISDA Form, with such modifications as you and we will in good faith agree. Upon the execution by you and us of such an agreement, this Confirmation will supplement, form a part of and be subject to and governed by that agreement except as expressly modified below. Until we execute and deliver that agreement, this Confirmation, together with all other documents referring to the ISDA Form (each a "Confirmation") confirming transactions (each a "Transaction") entered into between us (notwithstanding anything to the contrary in a confirmation), shall supplement, form a part of, and be subject to an agreement in the form of the ISDA Form as if we had executed an agreement in such form (but without any Schedule except for the election of the laws of England as the Governing Law and U.S. Dollars as the Termination Currency) on the Trade Date of the first Transaction between us (hereinafter the "Agreement"). In the event of any inconsistency between the provisions of any such Agreement and this Confirmation, this Confirmation will prevail for the purposes of this Transaction. The terms of the particular Swap Transaction to which this Confirmation relates are as follows: - -------------------------------------------------------------------------------- Page 1 UBS AG Ref: 37014557 C/P Ref: Please advise General Terms - ------------- Trade Date: 21 September 2004 Effective Date: 21 March 2006 Termination Date: 21 September 2007 , subject to adjustment in accordance with the Modified Following Business Day Convention. Notational Amount: Initially USD 98,705,000.00 amortising as per the Amort- ising Schedule below Amortising Schedule - ------------------- Period Start Date Period End Date Calculation Amount - ----------------- --------------- ------------------ Effective Date 21 June 2006 USD 98,705,000.00 21 June 2006 21 September 2006 USD 93,242,500.00 21 September 2006 21 December 2006 USD 87,780,000.00 21 December 2006 21 March 2007 USD 84,265,000.00 21 March 2007 21 June 2007 USD 80,750,000.00 21 June 2007 21 August 2007 USD 75,477,500.00 21 August 2007 21 September 2007 USD 70,174,600.00 The dates in the above schedule with the exception of the Effective Date will be subject to adjustment in accordance with the Modified Following Business Day Convention. Seller of Cap: UBS AG Buyer of Cap: Counterparty Calculation Agent: UBS AG, unless otherwise stated in the Schedule to the Master Agreement. Business Days: London, New York Broker: None Fixed Amounts - ------------- Fixed Rate Payer: Counterparty Fixed Amount: USD 395,000.00 Fixed Rate Payer Payment Date: 23 September 2004, subject to adjustment in accordance with the Business Day Convention specified below. Business Day Convention: Following Cap Payment Details - ------------------- Floating Rate Payer: UBS AG Cap Rate: 5 percent per annum - -------------------------------------------------------------------------------- Page 2 UBS AG Ref: 37014557 C/P Ref: Please advise The following details refer to the Cap: Floating Amounts - ---------------- Floating Rate Option: USD-LIBOR-BBA Designated Maturity: 3 Month, with the exception of the final Two Calculation Periods, where Linear Inter- polation shall apply Spread: None Floating Rate Day Count Fraction: Actual/360 Floating Rate Payer Payment Dates: 21 June 2006, 21 September 2006, 21 December 2006, 21 March 2007, 21 June 2007, 21 August 2007 and 21 September 2007, subject to ad- justment in accordance with the Business Day Convention specified below. Reset Dates: First day of each Calculation Period. Business Day Convention: Modified Following Relationship Between Parties - ---------------------------- Each party will be deemed to represent to the other party on the date on which it enters into this Transaction that (in the absence of a written Agreement between the parties which expressly imposes affirmative obligations to the contrary for this Transaction): - (a) Non-Reliance. Each party is acting for its own account, and has made its own independent decisions to enter into this Transaction and this such Transaction is appropriate or proper for it based upon its own judgement and upon advice from such advisers as it has deemed necessary. Each party is not relying on any communication (written or oral) of the other party as investment advice or as a recommendation to enter into this Transaction; it being understood that information and explanation relating to the terms and conditions of this Transaction shall not be considered investment advice or a recommendation to enter into this Transaction. No communication (written or oral) received from the other party shall he deemed to be an assurance or guarantee as to the expected results of this Transaction. (b) Assessment and Understanding. Each party is capable of assessing the merits of and understands (on its own behalf or through independent professional advice), and accepts, the terms, conditions and risks of this Transaction. Each party is also capable of assuming and assumes, the risks of this Transaction. (c) Status of the Parties. Neither party is acting as a fiduciary for or as an adviser to the other in respect of this Transaction. References in this clause to "a party" shall, in the case of UBS AG, London Branch and where the context so allows, include references to any affiliate of UBS AG, London Branch Account Details Currency: USD - -------------------------------------------------------------------------------- Page 3 UBS AG Ref: 37014557 C/P Ref: Please advise Correspondent Bank: UBS AG, STAMFORD BRANCH Swift Address: UBSWUS33XXX Favour: UBS AG LONDON BRANCH Swift Address: UBSWGB2LXXX Account No: 101-wa-140007-000 Further Credit To: Swift Address: Account No: Offices - ------- The office of UBS AG for the Swap Transaction is London; and the office of Counterparty for the Swap Transaction is OKLAHOMA CITY. Contact Names at UBS AG - ----------------------- Rate Fixings: Trade Processing: (44) 207 ###-###-#### Pre Value Payments: Pre Value Payment Investigations: (44) 207 ###-###-#### Post Value Payments: Post Value Payment Investigations: (44) 20 7567 8999 Confirmation Queries: Confirmation Control: (44) 207 ###-###-#### ISDA Documentation: Credit Risk Management: (44) 207 ###-###-#### Swift: UBSWGB2L Fax: (44) 207 ###-###-####/2990 Address: UBS AG 100 Liverpool Street London EC2M 2RII Please confirm that the foregoing correctly sets forth the terms and conditions of our agreement by executing a copy of this Confirmation and returning it to us or by sending to us a letter or facsimile substantially similar to this letter, which letter or facsimile sets forth the material terms of the Transaction to which this Confirmation relates and indicates your agreement to those terms or by sending to us a return letter or facsimile in the form attached. Yours faithfully For and on Behalf of UBS AG, London Branch By: By: - -------------------------------------------------------------------------------- Page 4 UBS AG Ref: 37014557 C/P Ref: Please advise /s/ Michael Armcr /s/ Jonathan Moss Name : Michael Armcr Name: Jonathan Moss Title: Associate Director Title: Director Acknowledged and agreed by QUEST CHEROKEE LLC as of the Trade Date specified above. By: /s/ David Grose By: Name: David Grose Name: Title CFO Title: UBS AG London Branch, 1 Finsbury Avenue, London, EC2M 2PP. UBS AG is a member of the London Stock Exchange and is regulated in the UK by the Financial Services Authority. Representatives of UBS Limited introduce trades to UBS AG via UBS Limited. - -------------------------------------------------------------------------------- Page 5 UBS AG Ref: 37014557 C/P Ref: Please advise