Contract analysis

1. BRB admits that it is a nationally chartered commercial bank, chartered under the Office of the Comptroller of the Currency ("OCC"), Charter No. 14-00927, with its principal offices located at 1200 Avenue of the Americas, 38th Floor, New York, New York 10036. BRB further admits that its common stock is publicly traded on the New York Stock Exchange under the ticker symbol "BRMR."

2. BRB admits that Triton Harbor Industries, LLC is a Delaware limited liability company, Delaware Division of Corporations File No. 5217839, with its principal place of business at 47-15 Austell Street, Suite 200, Long Island City, New York 11101.

3. BRB admits that Marcus J. Kappel is the founder, Chief Executive Officer, and 72% equity member of Triton Harbor Industries, LLC.

4. BRB admits that Elaine D. Kappel is the Chief Financial Officer and 28% equity member of Triton Harbor Industries, LLC.

5. BRB admits that this Court has jurisdiction over the parties and the subject matter of this action, and that venue is proper in the County of New York pursuant to the forum selection clause set forth in Section 12(e) of the Forbearance Agreement and Section 11.09 of the Credit Agreement.

6. BRB admits that it filed the original Complaint in this action on August 12, 2024, which was assigned Index No. 654871/2024 by the Clerk of this Court.

7. BRB admits that the Counterclaims were filed as part of Counterclaim Plaintiffs' Answer with Counterclaims on October 18, 2024. 8–15. To the extent the remaining introductory and jurisdictional paragraphs contain factual allegations not specifically addressed above, BRB denies such allegations except to the extent they are consistent with the admissions set forth in this section. To the extent any such paragraphs

16. BRB admits that BRB, as Lender, and Triton Harbor Industries, LLC, as Borrower, entered into a Credit Agreement dated June 15, 2021 (the "Credit Agreement"), pursuant to which BRB extended the following credit facilities: (a) Term Loan A, in the original principal amount of Fourteen Million Dollars ($14,000,000), with a maturity date of June 15, 2028, structured with an eighty-four (84) month term and quarterly p

17. BRB admits that the applicable interest rate on Term Loan A was the Secured Overnight Financing Rate ("SOFR") plus 275 basis points, and that the applicable interest rate on the Revolving Credit Facility was SOFR plus 250 basis points, in each case as set forth in the Credit Agreement and subject to the terms and conditions thereof.

18. BRB admits that the credit facilities were secured by a first-priority lien on substantially all assets of Triton Harbor, including, without limitation, marine terminal equipment, accounts receivable, inventory, and general intangibles, as well as a first mortgage on the Long Island City terminal facility located at 50-22 Borden Avenue, Long Island City, New York 11101. BRB further admits that title insurance was

19. BRB admits that the collateral securing the original credit facilities was appraised at Eighteen Million Seven Hundred Thousand Dollars ($18,700,000) in June 2021 by Ridgeline Appraisal Group, Inc. in an appraisal report delivered in connection with the closing of the Credit Agreement.

20. BRB admits that Marcus J. Kappel executed a limited personal guaranty in the amount of Four Million Five Hundred Thousand Dollars ($4,500,000) in connection with the original Credit Agreement.

21. BRB admits that the Credit Agreement contained certain financial covenants applicable to Triton Harbor, including, without limitation: (a) a minimum Fixed Charge Coverage Ratio of 1.20x, tested quarterly; (b) a maximum Total Leverage Ratio of 3.50x, tested quarterly; and (c) a minimum Liquidity requirement of Two Million Dollars ($2,000,000), tested monthly. 22–30. BRB denies any allegations in these paragraphs t

31. BRB admits that Triton Harbor's financial performance deteriorated significantly in calendar year 2023. BRB admits that Triton Harbor's trailing-twelve-month EBITDA as reported for the first quarter of 2023 was approximately Five Million One Hundred Thousand Dollars ($5,100,000), a decline from the adjusted EBITDA of approximately Nine Million Four Hundred Thousand Dollars ($9,400,000) for fiscal year 2022.

32. BRB admits that, as of the first quarter of 2023, Triton Harbor's Fixed Charge Coverage Ratio had fallen to approximately 0.87x, which was below the covenant minimum of 1.20x, and that the Total Leverage Ratio had risen to approximately 4.92x, which exceeded the covenant maximum of 3.50x.

33. BRB admits that BRB's internal credit review committee downgraded the Triton Harbor credits from a "Pass" rating to a "Substandard" classification (Risk Rating 7) on March 8, 2023, consistent with BRB's internal credit risk management policies and applicable OCC regulatory guidance. BRB further admits that, in connection with the downgrade, the Triton Harbor relationship was transferred from BRB's Relationship Ma

34. BRB admits that the outstanding balances on the Triton Harbor credit facilities as of approximately March 8, 2023 were as follows: approximately Eleven Million Three Hundred Seventy-Five Thousand Dollars ($11,375,000) on Term Loan A and approximately Six Million Two Hundred Thousand Dollars ($6,200,000) drawn on the Revolving Credit Facility, for a total outstanding balance of approximately Seventeen Million Five

35. BRB admits that during the period from approximately March 2023 through September 2023, Triton Harbor lost its municipal stevedoring and cargo-handling contract with the Port of Bridgehaven (estimated annual revenue of approximately $12,000,000) and its maintenance services contract for Newark Bay terminal operations (estimated annual revenue of approximately $7,500,000), resulting in a material adverse change in

36. BRB admits that Derek Whitmore, Senior Vice President and Head of the Special Assets Group, assumed senior management responsibility for the Triton Harbor relationship upon the account's transfer to SAG, and that Joanna Reeves, Vice President in the Special Assets Group, served as the day-to-day relationship manager for the Triton Harbor account. 37–45. BRB denies any allegations in these paragraphs that characte

46. BRB admits that Philip Aaronson serves as Executive Vice President and Chief Credit Officer of Belmont Ridge Bank NA. 47–50. To the extent the Counterclaims reference, quote, characterize, or purport to summarize the contents of an internal BRB memorandum dated August 22, 2023, from Philip Aaronson to Derek Whitmore, with a copy to Margaret Linden, Senior Vice President and General Counsel of BRB (the "Aaronson M

51. Without waiving any privilege or other objection, BRB denies that the Aaronson Memorandum constitutes evidence of any intent to defraud, deceive, mislead, or otherwise harm Counterclaim Plaintiffs. 52–53. BRB denies that any internal BRB communications regarding collateral disposition strategy, workout management, or any other subject are inconsistent with, or in any way contradicted, the express terms of the For

56. BRB admits that a meeting took place on September 12, 2023, at BRB's offices located at 1200 Avenue of the Americas, 38th Floor, New York, New York 10036. BRB admits that this meeting was attended by Derek Whitmore, Joanna Reeves, Marcus J. Kappel, and Elaine D. Kappel. 57–60. BRB denies that during the September 12, 2023 meeting, Derek Whitmore or any other BRB representative made a binding, enforceable, or unco

86. BRB admits that BRB, as Lender, and Triton Harbor Industries, LLC, as Borrower, together with Marcus J. Kappel and Elaine D. Kappel, individually and as Guarantors, executed the Forbearance and Modification Agreement on October 6, 2023. The Forbearance Agreement is a fully integrated written agreement that speaks for itself, and BRB respectfully refers the Court to the full text of the Forbearance Agreement for a

Section 9(c) of the Forbearance Agreement expressly provides: "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." Counterclaim Plaintiffs' claims of fraudulent inducement and negligent misrepresentation are premised entirely on alleged oral statements that BRB wo

1. Dismissing the First Counterclaim (Fraudulent Inducement) asserted by Triton Harbor Industries, LLC, Marcus J. Kappel, and Elaine D. Kappel, in its entirety and with prejudice;

2. Dismissing the Second Counterclaim (Negligent Misrepresentation) asserted by Triton Harbor Industries, LLC, Marcus J. Kappel, and Elaine D. Kappel, in its entirety and with prejudice;

3. Dismissing the Third Counterclaim (Breach of the Implied Covenant of Good Faith and Fair Dealing) asserted by Triton Harbor Industries, LLC, Marcus J. Kappel, and Elaine D. Kappel, in its entirety and with prejudice;

4. Dismissing the Fourth Counterclaim (Rescission) asserted by Triton Harbor Industries, LLC, Marcus J. Kappel, and Elaine D. Kappel, in its entirety and with prejudice;

5. Striking the demand for punitive damages contained in the Counterclaims;

6. Awarding BRB its costs and disbursements incurred in defending against the Counterclaims, including reasonable attorneys' fees to the extent permitted by the loan documents and applicable law;

7. Granting such other and further relief as this Court deems just and proper. VERIFICATION STATE OF NEW YORK COUNTY OF NEW YORK ss.: I, Thomas Hargreaves, being duly sworn, depose and state:

1. I am a Vice President and Associate General Counsel of Belmont Ridge Bank NA, the Plaintiff/Counterclaim Defendant in the above-captioned action. I am authorized to make this verification on behalf of Belmont Ridge Bank NA.

2. I have read the foregoing Verified Answer to Counterclaims of Plaintiff/Counterclaim Defendant Belmont Ridge Bank NA and am familiar with the contents thereof.

3. The statements of fact contained in the foregoing Verified Answer to Counterclaims are true to my knowledge, based upon my review of the books, records, and files of Belmont Ridge Bank NA and upon information provided to me by officers and employees of Belmont Ridge Bank NA who have personal knowledge of the facts and circumstances at issue in this action.

4. The denials contained in the foregoing Verified Answer to Counterclaims are based upon my review of the books, records, and files of Belmont Ridge Bank NA and upon information and belief formed after reasonable inquiry.

5. I make this verification pursuant to CPLR § 3020(d)(3), which authorizes verification by an officer of a corporation or other entity that is a party to the action. ________________________________________ Thomas Hargreaves Vice President and Associate General Counsel Belmont Ridge Bank NA 1200 Avenue of the Americas, 38th Floor New York, New York 10036 Date: November 22, 2024 Sworn to and subscribed before me this