Contract analysis

I. PURPOSE AND OBJECTIVES OF THE DEPOSITION A. Identification of the Deponent Elaine D. Kappel, age 55, is a counterclaim plaintiff in the above-captioned action. She is simultaneously a personal guarantor of the obligations of Triton Harbor Industries, LLC ("Triton Harbor" or the "Company") under an Unlimited Personal Guaranty dated October 6, 2023, the Chief Financial Officer of Triton Harbor, and a 28% equity memb

1. Establish Elaine Kappel's financial sophistication and active involvement in Triton Harbor's financial management as CFO. She is not a passive investor or a spouse who blindly signed documents at her husband's direction. She holds the title of Chief Financial Officer, oversees the Company's financial reporting and covenant compliance functions, and has been intimately involved in the banking relationship with BRB

2. Demonstrate she had full access to and understanding of the Forbearance and Modification Agreement, including, critically, Section 9(c) ("No Commitment to Extend Credit"), which provides in its entirety: "Nothing herein shall constitute or be deemed to constitute a commitment, agreement, or obligation on the part of Lender to extend additional credit, modify existing facilities, or renew any credit facility," and

3. Elicit admissions that she independently reviewed the Forbearance Agreement before execution, with the benefit of legal counsel and a financial advisor — specifically, Mercer Tidwell & Associates LLC, a restructuring advisory firm headed by Raymond Mercer, which was engaged by Triton Harbor in mid-2023 to advise on the workout and forbearance negotiations.

4. Undermine the justifiable reliance element of her fraudulent inducement counterclaim. Under New York law, a party's reliance on an oral representation is not justifiable where: (a) the party is a sophisticated commercial actor; (b) the party had access to independent legal and financial advisors; (c) the written agreement contains a specific disclaimer of the very commitment alleged to have been orally promised; a

5. Establish she was not merely a passive signer but an engaged participant in the forbearance negotiations. Her active role in the process — attending meetings, communicating with the financial advisor, reviewing draft documents — further supports the conclusion that she had ample opportunity to protect herself and cannot now claim to have been duped.

6. Pin down her specific understanding of alleged oral representations made at the September 12, 2023 meeting at BRB's offices at 1200 Avenue of the Americas, 38th Floor, New York, New York 10036. We need to elicit precise testimony about exactly what was said, by whom, and in what context, and to identify any inconsistencies with the testimony given by Marcus J. Kappel at his deposition one week prior.

7. Lock in testimony on whether she read, understood, and knowingly signed the unlimited personal guaranty dated October 6, 2023. The guaranty is the instrument through which BRB seeks to collect against her personal assets. Her counterclaim for rescission of the Forbearance Agreement (and, implicitly, the guaranty) depends on proving fraudulent inducement. If she cannot establish justifiable reliance, the rescission

8. Explore any inconsistencies between her testimony and that of Marcus J. Kappel, who was deposed on March 11, 2025 — one week prior to this deposition. The examining attorney must carefully review the transcript of Marcus Kappel's deposition before proceeding with this examination and should have key excerpts tabbed and available for impeachment if needed.

9. Cross-reference all testimony themes with completed depositions. The depositions of Derek Whitmore (February 18, 2025), Joanna Reeves (February 25, 2025), and Philip Aaronson (March 4, 2025) have been completed. All three are summarized in the Deposition Summary Memorandum dated March 10, 2025, prepared by Carlos Espinoza. The examining attorney should be thoroughly familiar with the substance of each prior deposi

II. EXHIBIT LIST The following exhibits should be pre-marked and assembled in a binder for use during the deposition. Each exhibit should be available in its original form and in sufficient copies for the witness, her counsel, the court reporter, and the videographer. Exhibits that have already been marked in prior depositions should retain their prior designations where possible to maintain consistency across the re

III. TOPIC AREA 1: BACKGROUND, EDUCATION, AND PROFESSIONAL EXPERIENCE 3.1 Personal Background Begin with standard background questions to put the witness at ease, establish rapport, and lay the foundation for the sophistication arguments that are central to our defense. • Please state your full name for the record. • How old are you, Ms. Kappel? • What is your current home address? [Expected answer: 14 Birchmont Lane

IV. TOPIC AREA 2: THE ORIGINAL CREDIT FACILITY (JUNE 15, 2021) 4.1 Negotiation and Execution This section establishes her familiarity with the original Credit Agreement and the baseline terms of the lending relationship. It also sets up the later contrast between the origination — when she was not required to provide a personal guaranty — and the forbearance — when she voluntarily assumed unlimited personal liability

V. TOPIC AREA 3: FINANCIAL DETERIORATION (2022–2023) 5.1 Her Awareness of Triton Harbor's Financial Decline This section is designed to establish that Elaine Kappel, as CFO, was fully informed about the gravity of Triton Harbor's financial distress, understood that the Company was in serious covenant breach, and appreciated the precariousness of the Company's position when it entered forbearance negotiations with BRB

VI. TOPIC AREA 4: RETENTION OF MERCER TIDWELL & ASSOCIATES LLC 6.1 The Decision to Engage a Financial Advisor This section establishes that Triton Harbor retained an independent, sophisticated financial advisory firm to guide it through the workout and forbearance process. The existence of independent financial advice is a powerful factor cutting against justifiable reliance on any alleged oral representations by BRB

VII. TOPIC AREA 5: THE SEPTEMBER 12, 2023 MEETING 7.1 Her Presence and Participation This is one of the most important sections of the deposition. The September 12, 2023 meeting is the meeting at which Triton Harbor alleges that certain oral representations were made by BRB personnel, and these alleged representations form the core of the fraudulent inducement and negligent misrepresentation counterclaims. The examin

VIII. TOPIC AREA 6: THE SEPTEMBER 18, 2023 REEVES EMAIL 8.1 Receipt and Understanding • Ms. Kappel, I am showing you Exhibit F. Do you recognize this document? • This is an email dated September 18, 2023, from Joanna Reeves, Vice President of the Special Assets Group at Belmont Ridge Bank, to Marcus Kappel. The email states, in relevant part: "We are optimistic about a path forward and believe this forbearance sets t

IX. TOPIC AREA 7: THE FORBEARANCE AND MODIFICATION AGREEMENT (OCTOBER 6, 2023) 9.1 Negotiation Process • Ms. Kappel, I want to turn now to the Forbearance and Modification Agreement, which has been marked as Exhibit C. Do you recognize this document? • Over what period of time were the terms of this Forbearance Agreement negotiated? • [Expected answer: Approximately late September through early October 2023, approxim

X. TOPIC AREA 8: EXECUTION OF THE UNLIMITED PERSONAL GUARANTY 10.1 Her Decision to Sign This section addresses the unlimited personal guaranty directly and is designed to establish that Elaine Kappel's decision to sign was voluntary, informed, and made with the benefit of counsel and a financial advisor. • Ms. Kappel, prior to October 6, 2023, you had not executed any personal guaranty of Triton Harbor's obligations

XI. TOPIC AREA 9: THE FORBEARANCE PERIOD (OCTOBER 2023 – APRIL 2024) 11.1 Monthly Payments and Compliance • After the Forbearance Agreement was executed on October 6, 2023, Triton Harbor made all six monthly payments of $125,000 required under Section 4(a), correct? • Those payments totaled $750,000 over the six-month forbearance period? • The additional collateral was also pledged as required — the assignment of equ