Rate Swap Transaction Confirmation between UBS AG, London Branch and Quest Cherokee, LLC (September 21, 2004)

Summary

This agreement confirms a rate swap transaction between UBS AG, London Branch and Quest Cherokee, LLC. Under the terms, Quest Cherokee pays a fixed interest rate of 2.795% per annum on a declining principal amount, while UBS AG pays a floating rate based on 3-month USD LIBOR on the same schedule. Payments are made quarterly from March 21, 2005, to March 21, 2006. The agreement is governed by ISDA terms and is subject to English law until a formal master agreement is executed. Both parties acknowledge they are acting independently and not relying on each other's advice.

EX-10.5 6 qr-ex105_1119749.txt RATE SWAP TRANSACTION Exhibit 10.5 UBS Date: 2l September 2004 To: Quest Cherokee, LLC ("Counterparty") Attn: DAVID GROSE Fax No: 0014054881156 From: UBS AG, LONDON BRANCH ("UBS AG") Subject: Rate Swap Transaction UBS AG Ref: 37014599 (the "Transaction") Counterparty Ref: Please Advise 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 Rate Swap Transaction to which this Confirmation relates are as follows: General Terms - ------------- Trade Date: 21 September 2004 Effective Date: 21 March 2005 Termination Date: 21 March 2006, subject to adjustment in accordance with the Modified Following Business Day Convention. Calculation Agent: UBS AG, unless otherwise stated in the Schedule to the Master Agreement - ------------------------------------------------------------------------------ UBS AG Ref: 37014599 Page - 1 - Broker: None Fixed Amounts - ------------- Fixed Rate Payer: Counterparty Fixed Rate Payer Calculation Amount: As described in the Amortising Schedule below Amount: - -------------------------------------------------------------------------------- Period from (and including) Period to (but excluding) Calculation Amount - -------------------------------------------------------------------------------- Effective Date 21 June 2005 USD 58,250,000.00 21 June 2005 21 September 2005 USD 57,025,000.00 21 September 2005 21 December 2005 USD 55,800,000.00 21 December 2005 Termination Date USD 53,875,000.00 - -------------------------------------------------------------------------------- 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. Fixed Rate: 2.795 percent per annum Fixed Rate Day Count Fraction: Actual/360 Fixed Rate Payer Payment Dates: 21 June 2005 , 21 September 2005 , 21 Decem- ber 2005 and 21 March 2006 from and including 21 June 2005, up to and including the Termina- tion Date , subject to adjustment in accordance with the Business Day Convention specified im- mediately below Business Day Convention: Modified Following Business Days: New York and London Floating Amounts - ---------------- Floating Rate Payer: UBS AG Floating Rate Payer Calculation Amount: As described in the Amortising Schedule below - -------------------------------------------------------------------------------- Period from (and including) Period to (but excluding) Calculation Amount - -------------------------------------------------------------------------------- Effective Date 21 June 2005 USD 58,250,000.00 21 June 2005 21 September 2005 USD 57,025,000.00 21 September 2005 21 December 2005 USD 55,800,000.00 21 December 2005 Termination Date USD 53,875,000.00 - -------------------------------------------------------------------------------- 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. - ------------------------------------------------------------------------------ UBS AG Ref: 37014599 Page - 2 - Floating Rate Option: USD-LIBOR-BBA Designated Maturity: 3 months Floating Rate Day Count Fraction: Actual/360 Spread: None Floating Rate Payer Payment Dates: 21 June 2005 , 21 September 2005 , 21 December 2005 and 21 March 2006 from and including 21 June 2005, up to and including the Termination Date , subject to adjustment in accordance with the Business Day Convention specified immediately below Business Day Convention: Modified Following Reset Dates: First day of each Calculation Period Compounding: Inapplicable Business Days: New York and London Relationship Between Parties - ---------------------------- Each party will he 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 be 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 Correspondent Bank: UBS AG, STAMFORD Swift Address: UBSWUS33XXX Favour: UBS AG LONDON BRANCH Swift Address: UBSWGB2LXXX Account No: 101-WA-140007-000 Further Credit To: - ------------------------------------------------------------------------------ UBS AG Ref: 37014599 Page - 3 - Swift Address: Account No: Offices - ------- (a) The office of UBS AG for the Swap Transaction is LONDON and (b) The office of the Counterparty for the Swap Transaction is OKLAHOMA CITY, OK. Contact Names at - ---------------- UBS AG - ------ Pre Value Payments: Pre Value Payment Investigations: (44) 20 7568 2665 Post Value Payments: Post Value Payment Investigations: (44) 20 7567 8999 Confirmation Queries: Confirmation Control: (44) 20 7567 2677 ISDA Documentation: Credit Risk Management: (44) 20 7567 4557 Swift: UBSWGB2L Fax: (44) 20 7567 2685 or 2990 Address: 100 Liverpool Street, London, EC2M 2RH UBS AG - ------------------------------------------------------------------------------ UBS AG Ref: 37014599 Page - 4 - 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: /s/ Scan Taylor /s/ Martin Perkins Name: Scan Taylor Name: Martin Perkins Title: 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 - ------------------------------------------------------------------------------ UBS AG Ref: 37014599 Page - 5 -