Contract analysis

1. I am a member of the bar of the State of New York, admitted in the First Department, and an associate at Calderwood & Harkness LLP, counsel for Plaintiff/Counterclaim Defendant Belmont Ridge Bank NA ("BRB") in the above-captioned action. I am fully familiar with the facts and circumstances of this matter, and I submit this affirmation in support of BRB's motion to dismiss the demand for punitive damages from the F

2. I make this affirmation based upon my personal knowledge, upon the files and records of Calderwood & Harkness LLP maintained in the ordinary course of business, and upon the documents annexed hereto as exhibits. To the extent that any statements contained herein are based upon information and belief, I identify the source of that information. PROCEDURAL BACKGROUND

3. BRB is a nationally chartered commercial bank, holding OCC Charter No. 14-00927, with its principal office and headquarters located at 1200 Avenue of the Americas, 38th Floor, New York, New York 10036. BRB is publicly traded on the New York Stock Exchange under the ticker symbol "BRMR." As of its most recent quarterly filing with the Securities and Exchange Commission for the period ending September 30, 2024, BRB

4. On August 12, 2024, BRB commenced this action by filing a Summons and Verified Complaint with the Clerk of this Court. The Complaint asserts causes of action for: (a) enforcement of a Forbearance and Modification Agreement dated October 6, 2023 (the "Forbearance Agreement"); (b) breach of the Credit Agreement dated June 15, 2021 (the "Credit Agreement"); (c) judgment on the Amended and Restated Personal Guaranty o

5. The total accelerated amount sought by BRB in this action is $17,456,212. This amount comprises: (a) $10,625,000 in outstanding principal on Term Loan A; (b) $6,200,000 in outstanding principal on the Revolving Credit Facility; (c) $487,322 in accrued and unpaid interest through the date of acceleration; and (d) $143,890 in late fees and default interest as provided under Section 2.5 of the Credit Agreement and Se

6. On October 18, 2024, Counterclaim Plaintiffs, through their counsel Kestrel Voss & Huang LLP, filed an Answer with Counterclaims. The Answer interposes seventeen affirmative defenses and asserts four counterclaims: (i) a First Counterclaim for fraudulent inducement; (ii) a Second Counterclaim for negligent misrepresentation; (iii) a Third Counterclaim for breach of the implied covenant of good faith and fair deali

7. The First, Second, and Third Counterclaims each demand compensatory damages "in an amount not less than $12,500,000" and, in addition, "punitive damages in an amount to be determined at trial but sufficient to punish BRB for its egregious and willful misconduct and to deter similar conduct in the future." See Answer with Counterclaims, Ex. B, at ¶¶ 87, 98, 109.

8. On November 22, 2024, BRB timely filed its Answer to Counterclaims, denying the material allegations of the counterclaims and interposing affirmative defenses.

9. On December 6, 2024, the parties appeared before Justice Marchetti for a Preliminary Conference. The Court issued a Preliminary Conference Order establishing a discovery schedule, including document production deadlines, depositions, and expert disclosures. The current motion is timely brought and does not implicate or seek to modify the existing discovery schedule. THE FACTUAL ALLEGATIONS IN THE COUNTERCLAIMS

10. The following summary of the factual allegations in the counterclaims is drawn from the Answer with Counterclaims, Exhibit B hereto, and is presented for the Court's convenience. In accordance with the applicable standard of review under CPLR 3211(a)(7), BRB does not concede the truth of any of these allegations and expressly reserves all defenses and objections.

11. Triton Harbor is a Delaware limited liability company with its principal place of business at 45-20 Vernon Boulevard, Long Island City, New York 11101. Triton Harbor is engaged in marine terminal logistics, commercial vessel maintenance and repair, and harbor infrastructure services. The company operates primarily in the New York and New Jersey port region, providing services to commercial shipping lines, municip

12. Marcus J. Kappel is alleged to be the founder, Chief Executive Officer, and 72% equity member of Triton Harbor. Elaine D. Kappel is alleged to be the Chief Financial Officer and 28% equity member of Triton Harbor. Both individuals reside at 14 Birchmont Lane, Westport, Connecticut 06880. See Ex. B, ¶¶ 8-10.

13. The Credit Agreement between BRB and Triton Harbor was executed on June 15, 2021. Pursuant to the Credit Agreement, BRB committed to extend credit to Triton Harbor in the form of two separate facilities: (a) Term Loan A in the original principal amount of $14,000,000, with a five-year maturity and quarterly principal amortization; and (b) a Revolving Credit Facility in the maximum aggregate commitment amount of $

14. At the time of the original credit extension, Marcus J. Kappel executed a limited personal guaranty of Triton Harbor's obligations under the Credit Agreement, with the exposure cap set at $4,500,000. The original guaranty was limited in both amount and scope. See Ex. B, ¶ 18; Ex. D, Guaranty Addendum.

15. The counterclaims allege that Triton Harbor's financial condition deteriorated significantly during the 2022-2023 period, attributable to supply chain disruptions, inflation in fuel and labor costs, and the loss of a major harbor services contract with the Port Authority of New York and New Jersey. On March 8, 2023, BRB's internal loan review process resulted in a downgrade of the Triton Harbor credit from Pass (

16. Following the credit downgrade, Triton Harbor's account was transferred from BRB's Commercial Lending Division to BRB's Special Assets Group ("SAG"). The SAG relationship was managed by Derek Whitmore, Senior Vice President, and Joanna Reeves, Vice President. See Ex. B, ¶ 27.

17. The counterclaims allege that during the course of workout negotiations between BRB and Triton Harbor spanning from approximately March 2023 through October 2023, BRB's SAG officers made representations that induced Triton Harbor and the individual Counterclaim Plaintiffs to enter into the Forbearance Agreement and to provide additional collateral and expanded guaranties. See Ex. B, ¶¶ 28-55.

18. Specifically, the counterclaims allege that at a meeting held on September 12, 2023 at BRB's offices at 1200 Avenue of the Americas, New York, New York, attended by Whitmore, Reeves, Marcus Kappel, Elaine Kappel, and Triton Harbor's restructuring advisor from Mercer Tidwell & Associates LLC, Whitmore and Reeves represented that: (a) BRB was "committed to the long-term relationship" with Triton Harbor; (b) BRB wou

19. The counterclaims further cite a September 18, 2023 email from Reeves to Marcus Kappel in which Reeves stated that BRB was "optimistic about a path forward" and that the "forbearance sets the stage for a renewed credit relationship." See Ex. B, ¶ 44.

20. The counterclaims allege, upon information and belief, that on or about September 29, 2023, BRB's SAG prepared a draft internal term sheet for a proposed new $6.5 million revolving credit facility for Triton Harbor, but that this draft term sheet was never submitted for formal credit approval and was never approved by any authorized credit officer of BRB. See Ex. B, ¶ 46.

21. The Forbearance Agreement was executed on October 6, 2023. Pursuant to the Forbearance Agreement, BRB agreed to forbear from exercising certain remedies for a period of approximately six months, subject to the satisfaction of specified milestones, including the achievement of a minimum fixed charge coverage ratio of 1.20x. In exchange, the following consideration was provided by the Counterclaim Plaintiffs: (a) T

22. The central allegation underlying the counterclaims is that, prior to the commencement of workout negotiations, an internal memorandum was authored by Philip Aaronson, Executive Vice President and Chief Credit Officer of BRB, on August 22, 2023. The counterclaims allege that this memorandum, directed to the Special Assets Group, instructed SAG to "pursue a structured exit from the Triton Harbor relationship withi

23. The counterclaims allege that this internal memorandum predated the September 12, 2023 meeting and the September 18, 2023 email described above, and that, accordingly, the representations made by Whitmore and Reeves regarding BRB's commitment to the relationship and its willingness to consider new credit facilities were knowingly false when made. See Ex. B, ¶¶ 57-61.

24. On April 15, 2024, BRB issued a Notice of Default and Acceleration to Triton Harbor, Marcus Kappel, and Elaine Kappel, declaring all outstanding indebtedness due and payable. The acceleration was predicated on the failure to satisfy the minimum fixed charge coverage ratio milestone specified in Section 5(a)(ii) of the Forbearance Agreement: Triton Harbor's reported FCCR was 0.94x against the required minimum of 1

25. The counterclaims characterize BRB's overall course of conduct as a deliberate and premeditated scheme to extract additional collateral and expanded personal guaranties from the Counterclaim Plaintiffs while concealing a predetermined intent to accelerate the indebtedness and liquidate the collateral, including the Kappels' personal residence. The counterclaims assert that this conduct was egregious, wanton, and

26. The Forbearance Agreement contains express provisions that are directly relevant to the counterclaims' factual allegations and to the present motion. The full text of the relevant provisions is contained in Exhibit A. The following provisions are highlighted for the Court's convenience.

27. Section 9(c) of the Forbearance Agreement, entitled "No Commitment to Extend Credit," provides in pertinent part: "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. Any decision to extend additional credit, modify facilities, or otherwise continue any credit

28. Section 12(a) of the Forbearance Agreement, entitled "Entire Agreement; Integration," provides in pertinent part: "This Agreement, together with the Credit Agreement and the other Loan Documents (each as modified hereby), constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous oral and written representations, warranties, agreements, a

29. Section 12(b) of the Forbearance Agreement further provides that Borrower acknowledges that it has been represented by its own independent legal counsel and financial advisors in connection with the negotiation, execution, and delivery of the Forbearance Agreement.

30. It is undisputed that during the workout negotiations leading to the execution of the Forbearance Agreement, Triton Harbor was represented by Mercer Tidwell & Associates LLC, a restructuring advisory firm specializing in middle-market credit workouts, and by outside legal counsel. The Counterclaim Plaintiffs, as sophisticated commercial parties represented by experienced advisors, negotiated the terms of the Forb

31. This affirmation is submitted to place before the Court the factual context necessary for a determination of BRB's legal arguments, which are set forth in full in the accompanying Memorandum of Law.

32. At its core, this matter involves a private, bilateral commercial lending dispute between a nationally chartered bank and a sophisticated commercial borrower, each represented by independent legal counsel and financial advisors. The allegations in the counterclaims arise exclusively from the lending relationship between BRB and Triton Harbor, and specifically from the negotiation and execution of the October 6, 2

33. No allegation in the counterclaims asserts that BRB's conduct was directed at the public generally, affected any consumer lending relationship, involved any party other than the contracting parties to the Credit Agreement and the Forbearance Agreement, or was part of a broader pattern or practice affecting other borrowers. The counterclaims are addressed exclusively to the dealings between BRB and Triton Harbor,

34. When BRB issued the Notice of Default and Acceleration on April 15, 2024, it exercised express contractual rights granted to it under the Forbearance Agreement and the Credit Agreement. The acceleration was triggered by Triton Harbor's failure to satisfy a specifically enumerated financial covenant milestone, a fact that is not disputed in the Answer with Counterclaims.

35. The exhibits annexed hereto are true and correct copies of the referenced documents, or of relevant excerpts thereof, and are submitted in support of this motion. EXHIBITS

36. The following exhibits are annexed hereto and incorporated by reference: Exhibit A: Forbearance and Modification Agreement dated October 6, 2023 (relevant excerpts, including Sections 9(c) and 12(a)) Exhibit B: Answer with Counterclaims dated October 18, 2024 Exhibit C: Notice of Default and Acceleration dated April 15, 2024 Exhibit D: Credit Agreement dated June 15, 2021 (relevant excerpts)

37. For all of the foregoing reasons, and for the reasons more fully set forth in the accompanying Memorandum of Law, BRB respectfully requests that this Court grant the motion and dismiss the demand for punitive damages from the First, Second, and Third Counterclaims. CARLOS ESPINOZA, ESQ. By: /s/ Carlos Espinoza Carlos Espinoza, Esq. Calderwood & Harkness LLP 600 Lexington Avenue, 30th Floor New York, New York 1002

1. I am an associate at Calderwood & Harkness LLP, 600 Lexington Avenue, 30th Floor, New York, New York 10022, attorneys for Plaintiff/Counterclaim Defendant Belmont Ridge Bank NA in the above-captioned action.

2. On January 28, 2025, I caused the following documents to be served upon counsel for Defendants/Counterclaim Plaintiffs: (a) Notice of Motion for Partial Dismissal of Counterclaims, dated January 28, 2025; (b) Affirmation of Carlos Espinoza, Esq., in Support of Motion for Partial Dismissal of Counterclaims, dated January 28, 2025, with Exhibits A through D annexed thereto; (c) Memorandum of Law in Support of Motion

3. The foregoing documents were served upon the following attorneys of record for Defendants/Counterclaim Plaintiffs: Theodore Huang, Esq. Natasha Orlov, Esq. KESTREL VOSS & HUANG LLP 780 Third Avenue, 24th Floor New York, New York 10017 Telephone: (212) 681-3200 Email: thuang@kestrelvoss.com; norlov@kestrelvoss.com

4. Service was effectuated by the following methods: (a) Electronic Filing: The foregoing documents were filed and served through the New York State Courts Electronic Filing System ("NYSCEF"), in accordance with the NYSCEF rules and procedures applicable to cases in the Commercial Division of the Supreme Court, County of New York, and in compliance with the e-filing requirements of 22 NYCRR § 202.5-b; and (b) Email:

5. I certify that the foregoing statements are true and correct to the best of my knowledge and belief. ________________________________________ Carlos Espinoza, Esq. Calderwood & Harkness LLP 600 Lexington Avenue, 30th Floor New York, New York 10022 Telephone: (212) 509-7400 Dated: January 28, 2025 New York, New York Calderwood & Harkness LLP — Matter No. 1022-00005 DRAFT — For Review by L. Osei — 01/28/2025 COUNSEL