Swap Transaction Confirmation Agreement between Merrill Lynch Capital Services, Inc. and Fortress NBA Acquisition, LLC (as amended)

Summary

This agreement confirms the terms of a swap transaction between Merrill Lynch Capital Services, Inc. and Fortress NBA Acquisition, LLC. Under the agreement, Fortress pays a fixed interest rate and Merrill Lynch pays a floating rate based on USD-LIBOR, on a notional amount of $12 million, with monthly payments from February 2005 to January 2008. The agreement includes collateral requirements and security interests to protect both parties, and is governed by New York law. Both parties agree to negotiate a formal ISDA Master Agreement to further govern their relationship.

EX-10.83.3 19 y10687a1exv10w83w3.txt EX-10.83.3 Exhibit 10.83.3 MERRILL LYNCH DATE: DECEMBER 3, 2004 AMENDED: JANUARY 13, 2005 AMENDED: FEBRUARY 4, 2005 AMENDED: FEBRUARY 15, 2005 TO: FORTRESS NBA ACQUISITION, LLC ("Counterparty") ATTENTION: Akhil Sharma TEL: 212 ###-###-#### FAX: 212 ###-###-#### FROM: MERRILL LYNCH CAPITAL SERVICES, INC. ("MLCS") CONTACT: Hui Sun Kwei EMAIL: ***@*** TEL: 212 ###-###-#### FAX: 917 ###-###-#### RE: SWAP TRANSACTION ML REF: 04DL16954, 1942455 THIS COMMUNICATION SUPERCEDES AND REPLACES ALL PRIOR COMMUNICATION BETWEEN THE PARTIES HERETO WITH RESPECT TO THE TRANSACTION DESCRIBED BELOW. Dear Sir or Madam: 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 (the "Transaction"). This communication constitutes a "Confirmation" as referred to in the Agreement specified below. The definitions and provisions contained in the 2000 ISDA Definitions as published by the International Swaps and Derivatives Association, Inc. (the "Definitions") are incorporated into this Confirmation. For these purposes, all references in those Definitions to a "Swap Transaction" shall be deemed to apply to the Transaction referred to herein. In the event of any inconsistency between the Definitions and this Confirmation, the terms of this Confirmation shall govern. This Confirmation evidences a complete and binding agreement between you and us as to the terms of the Transaction to which this Confirmation relates. In addition, you and we agree to use all reasonable efforts promptly to negotiate, execute and deliver an agreement in the form of the ISDA Master Agreement (Multicurrency-Cross Border) (the "Master Form"), with such modifications as you and wo will in good faith agree (the "Agreement"). Upon the execution by you and us of the Agreement, this Confirmation will supplement, form a part of, and be subject to the Agreement. All provisions contained in or incorporated by reference in the Agreement upon its execution will Page 1 of 6 MERRILL LYNCH govern this Confirmation except as expressly modified below. Until we execute and deliver the Agreement, this Confirmation, together with all other documents referring to the Master 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 Master Form as if we had executed an agreement in such form (but without any Schedule except for the election of the laws of the State of New York as the governing law and US Dollars as the Termination Currency) on the Trade Date of the first such Transaction between us. In the event of any inconsistency between the provisions of that agreement and this Confirmation, this Confirmation will prevail for the purpose of this Transaction. The terms of the particular Transaction to which the Confirmation relates are as follows: Notional Amount: USD 12,000,000.00 Trade Date: December 3, 2004 Effective Date: January 22, 2005 Termination Date: January 22, 2008 Fixed Amounts: Fixed Rate Payer: Counterparty Fixed Rate Payer Payment Date: The 22nd day of each month in each year, commencing on February 22, 2005 and ending on the Termination Date, inclusive, subject to adjustment in accordance with the Modified Following Business Day Convention. Fixed Rate: 3.615000% per annum Fixed Rate Payer Day Count Fraction: 30/360 No Adjustment of Period End Dates: Inapplicable Floating Amounts: Floating Rate Payer: MLCS Floating Rate Payer Payment Date: The 22nd day of each month in each year, commencing on February 22, 2005 and ending on the Termination Date, inclusive, subject to adjustment in accordance with the Modified Following Business Day

Page 2 of 6 MERRILL LYNCH Convention. Floating Rate Option: USD-LIBOR BBA Designated Maturity: One Month Spread: Inapplicable Floating Rate Payer Day Count Fraction: Actual/360 No Adjustment of Period End Dates: Inapplicable Reset Dates: The first day of each Floating Rate Payer Calculation Period Rate Cut-Off Dates: Inapplicable Averaging: Inapplicable Compounding: Inapplicable Business Days: New York and London Calculation Agent: MLCS, unless otherwise specified in the Agreement Collateral: (a) Until the execution of a Credit Support Annex between the parties, this Confirmation shall constitute a pledge agreement (and a Credit Support Document under the Agreement) securing the payment and performance of Counterparty's obligations to MLCS under this and any other Transaction between the parties. Promptly after the execution hereof, MLCS and Counterparty agree to execute a Credit Support Annex in form and substance reasonably satisfactory to the parties. With the exception of the "Independent Amount" language, Upon execution, the Credit Support Annex shall supersede and replace the pledge agreement and all the provisions of "Collateral" created hereby. (b) If at any time a Required Amount

Page 3 of 6 MERRILL LYNCH and/or an Independent Amount (both as defined below) exists, Counterparty, as security for its obligations to MLCS, shall, promptly upon demand by MLCS, pledge, transfer and deliver to MLCS, and grant MLCS a first priority continuing security interest in and right of set-off against, Eligible Collateral (as defused below) having a minimum market value equal to the Required Amount and/or Independent Amount, as applicable. (c) Upon any default by Counterparty in the performance of its obligations to MLCS hereunder or under any other Transaction with MLCS, MLCS shall have all rights of a secured creditor under the New York Uniform Commercial Code. (d) The term "Eligible Collateral" means U.S. denominated cash, U.S. Treasury Securities and any other form of collateral agreed to between the parties. The term "Required Amount" means the amount by which the value of any positive "Net Market Quotation" (as defined below) exceeds USD 0.00. A positive Net Market Quotation shall mean that MLCS is exposed to Counterparty and a negative Net Market Quotation shall mean that Counterparty is exposed to MLCS. The term "Net Market Quotation" means an amount equal to the sum of all Market Quotations (both positive and negative) for all Transactions between the parties assuming all such Transactions were being terminated as of the relevant date of valuation; provided, however, that Market Quotation will be determined by MLCS using its mid-market estimates of the amounts that would be paid for Replacement Transactions (as such term is defined in the definition of "Market Quotation").

Page 4 of 6 MERRILL LYNCH The term "Independent Amount" means, if at any time if the net book value of Party B falls below USD 50,000,000 at any time during the period 12 months prior to the date of any such determination, an amount equal to (a) (i) if such date of determination occurs during the first 12 months of the Transaction, up to 30 basis points of the Notional Account, (ii) if such date of determination occurs between months 12 and 24 of the Transaction, up to 20 basis points of the Notional Amount and (iii) if such date of determination occurs after month 24 of the Transaction, up to 10 basis points of the Notional Amount." Please contact Collateral Management, at telephone: (212) 449-3782, facsimile: (212) 738-1492, for delivery instructions for securities. Non-Reliance: Each party represents to the other party that it is acting for its own account, and has made its own independent decisions to enter into this Transaction and as to whether this Transaction is appropriate or proper for it based on its own judgement and upon advice from such advisors as it has deemed necessary. It 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 explanations related 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. Account Details:

Page 5 of 6 MERRILL LYNCH USD payments to MLCS: DEUTSCHE BANK TRUST COMPANY AMERICAS, NEW YORK, NY: 021001033) FAQ: MERRILL LYNCH CAPITAL SERVICES, INC., NEW YORK, NY Acct: 00-811-874 USD payments to Counterparty: Please Advise

Please confirm that the foregoing correctly sets the terms of our agreement by executing this Confirmation and returning it to us by facsimile transmission. Yours sincerely, MERRILL LYNCH CAPITAL SERVICES, INC. By: /s/ Angelina Lopes --------------------------------- Authorized Signatory Accepted and confirmed as of the Trade Date written above: FORTRESS NBA ACQUISITION, LLC By: /s/ William Doniger --------------------------------- Name: William Doniger Title: Authorized Signatory ------------------------------ Page 6 of 6