ATTORNEY WORK PRODUCT — PRIVILEGED AND CONFIDENTIAL

ATTORNEY WORK PRODUCT — PRIVILEGED AND CONFIDENTIAL
CALDERWOOD & HARKNESS LLP 600 Lexington Avenue, 30th Floor New York, NY 10022
MEMORANDUM
TO: Linda Osei, Responsible Partner Carlos Espinoza, Lead Associate
FROM: Hannah Brinkley, Working Associate
DATE: March 12, 2025
RE: Deposition Outline — Elaine D. Kappel (Cross-Examination), March 18, 2025
MATTER: Belmont Ridge Bank NA v. Triton Harbor Industries, LLC, Marcus J. Kappel, and Elaine D. Kappel
COURT: New York Supreme Court, New York County, Commercial Division
INDEX NO.: 654871/2024
JUSTICE: Hon. Althea Marchetti
C&H MATTER NO.: 1022-00005
This memorandum constitutes attorney work product prepared in anticipation of litigation and is protected by the attorney work-product doctrine and the attorney-client privilege. It is intended solely for use by the attorneys and staff of Calderwood & Harkness LLP working on the above-referenced matter. Distribution to any person outside the firm without the express written consent of the Responsible Partner is strictly prohibited.
DEPOSITION OUTLINE — ELAINE D. KAPPEL (CROSS-EXAMINATION)
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 member of the Company. Her dual role as a principal officer responsible for the Company's financial management and as a personal guarantor who voluntarily assumed unlimited liability is central to our defense of the counterclaims asserted by the Kappels and Triton Harbor.
B. Deposition Logistics
The deposition of Elaine D. Kappel is scheduled for March 18, 2025, at the offices of Calderwood & Harkness LLP, 600 Lexington Avenue, 30th Floor, New York, New York 10022. The deposition will be conducted by videotape and stenographic transcription. Counsel for the defendants-counterclaim plaintiffs, Kestrel Voss & Huang LLP (Theodore Huang and Natasha Orlov), will be present and may assert objections and instruct the witness not to answer on privilege grounds only, consistent with the Uniform Rules for the New York State Trial Courts and Justice Marchetti's standing orders for the Commercial Division.
C. Primary Objectives
The examination of Elaine D. Kappel should be designed to accomplish the following objectives, each of which is critical to Belmont Ridge Bank NA's ("BRB") defense of the counterclaims and to our anticipated summary judgment motion:
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 since the origination of the Credit Agreement in June 2021. Her sophistication is directly relevant to whether her alleged reliance on oral statements was justifiable as a matter of law.
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 Section 12(a) (the integration clause). These provisions are dispositive of the justifiable reliance element of her fraudulent inducement counterclaim and must be the focal point of the examination.
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; and (d) the written agreement contains an integration clause that supersedes all prior oral representations. See Danann Realty Corp. v. Harris, 5 N.Y.2d 317 (1959); Ridgeway Capital Markets v. Itochu Int'l, Inc., 2003 WL 1797847 (S.D.N.Y. Apr. 4, 2003); Centro Empresarial Cempresa S.A. v. Stonefield Group, 17 N.Y.3d 269 (2011).
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 claim fails, and the guaranty stands.
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 deposition and prepared to confront Elaine Kappel with any testimony from these witnesses that contradicts or undermines her expected narrative.
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 record.
Exhibit A: Original Credit Agreement dated June 15, 2021, by and between Belmont Ridge Bank NA, as Lender, and Triton Harbor Industries, LLC, as Borrower (with all schedules, exhibits, and annexes thereto).
Exhibit B: Original Limited Personal Guaranty of Marcus J. Kappel in the amount of $4,500,000, dated June 15, 2021.
Exhibit C: Forbearance and Modification Agreement dated October 6, 2023, by and between Belmont Ridge Bank NA, as Lender, and Triton Harbor Industries, LLC, as Borrower (the "Forbearance Agreement"). The following provisions should be tabbed or marked separately for ease of reference during examination:
•  Section 4(a): Monthly debt service payments of $125,000 during the forbearance period.
•  Section 9(c): "No Commitment to Extend Credit" — Full text: "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."
•  Section 12(a): Integration Clause.
Exhibit D: Amended Unlimited Personal Guaranty of Marcus J. Kappel, dated October 6, 2023 (amending and restating the original Limited Personal Guaranty of $4,500,000 as an unlimited guaranty).
Exhibit E: Unlimited Personal Guaranty of Elaine D. Kappel, dated October 6, 2023.
Exhibit F: Email from Joanna Reeves, Vice President, Special Assets Group, Belmont Ridge Bank NA, to Marcus J. Kappel, dated September 18, 2023. Key language: "We are optimistic about a path forward and believe this forbearance sets the stage for a renewed credit relationship."
Exhibit G: Triton Harbor Industries, LLC — Financial Statements for FY2022 and Q1 2023, including:
•  FY2022 reported revenue of approximately $68 million and Adjusted EBITDA of $9.4 million.
•  Q1 2023 trailing twelve-month ("TTM") EBITDA of $5.1 million.
•  Q1 2023 Fixed Charge Coverage Ratio ("FCCR") of 0.87x (against a covenant minimum of 1.20x).
•  Q1 2023 Total Leverage Ratio of 4.92x (against a covenant maximum of 3.50x).
Exhibit H: Engagement letter between Mercer Tidwell & Associates LLC and Triton Harbor Industries, LLC, dated mid-2023, setting forth the scope and terms of Mercer Tidwell's retention as restructuring and financial advisor.
Exhibit I: Updated Collateral Appraisal prepared by Ridgeline Appraisal Group, Inc., dated September 2023, reflecting a current appraised value of $11,200,000 for the BRB collateral package, compared to the origination appraisal of $18,700,000 — a decline of $7,500,000, or approximately 40.1%.
Exhibit J: Appraisal of the Kappel family residence located at 14 Birchmont Lane, Westport, Connecticut 06880, reflecting an appraised value of $3,100,000.
Exhibit K: Assignment of Equipment Leases, executed in connection with the Forbearance Agreement, pledging additional collateral appraised at $2,300,000.
Exhibit L: Notice of Default and Acceleration dated April 15, 2024, issued by Belmont Ridge Bank NA to Triton Harbor Industries, LLC, Marcus J. Kappel, and Elaine D. Kappel.
Exhibit M: Organizational documents of Triton Harbor Industries, LLC (Certificate of Formation, Operating Agreement, and amendments thereto), reflecting Elaine D. Kappel's status as a 28% equity member and her designation as Chief Financial Officer.
Exhibit N: Elaine D. Kappel's Answer with Counterclaims, filed October 18, 2024, through counsel at Kestrel Voss & Huang LLP (Theodore Huang and Natasha Orlov).
Exhibit O: All correspondence between Elaine D. Kappel and Mercer Tidwell & Associates LLC (including Raymond Mercer) regarding the forbearance terms, the additional collateral demands, the expanded guaranty, and any discussion of BRB's alleged commitment to extend new credit. Note: Specific documents to be identified from production in advance of the deposition. The examining attorney should review the privilege log carefully for any withheld communications that may be responsive.
Exhibit P: All correspondence between Elaine D. Kappel and outside counsel (if privilege waiver is asserted or if the communications relate to her review of the Forbearance Agreement before execution). Note: If Kestrel Voss & Huang asserts attorney-client privilege over pre-execution communications with counsel, the examining attorney should probe the factual predicate — i.e., whether counsel was consulted — without seeking the substance of the legal advice. The fact of consultation is itself a critical admission.
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, Westport, Connecticut 06880.]
•  How long have you resided at that address?
•  Is this the property that was pledged as additional collateral under the Forbearance and Modification Agreement we will discuss today?
•  Are you married to Marcus J. Kappel, who was deposed in this matter on March 11, 2025?
Transition to educational background. These questions are critical because any advanced degrees, professional certifications, or specialized training in finance or accounting directly support the argument that she is a sophisticated party:
•  Where did you attend college, and what degree or degrees did you earn?
•  Did you attend any graduate or professional school? If so, where, and what degree did you obtain?
•  Do you hold any professional certifications? For example, are you a Certified Public Accountant, a Chartered Financial Analyst, or do you hold any other financial or accounting credentials?
•  Have you completed any continuing education or professional development courses in accounting, finance, or commercial lending?
Transition to professional history prior to Triton Harbor:
•  Before joining Triton Harbor Industries, where were you employed?
•  Please describe each position you held, the name of the employer, and the approximate dates of employment.
•  In any of those prior positions, did you have responsibility for managing banking relationships, reviewing loan documents, or overseeing financial reporting to lenders?
•  In any of those prior positions, did you have responsibility for negotiating the terms of credit facilities or loan agreements?
3.2 Role at Triton Harbor Industries, LLC
This section is designed to establish her central role in the Company's financial management and her direct involvement in the banking relationship with BRB.
•  You are currently the Chief Financial Officer of Triton Harbor Industries, LLC, correct?
•  Triton Harbor is a Delaware limited liability company, is that correct?
•  And the principal place of business of Triton Harbor is at 47-15 Austell Street, Suite 200, Long Island City, New York 11101?
•  In addition to being the CFO, you are also an equity member of Triton Harbor, correct?
•  What is your percentage ownership interest in Triton Harbor? [Expected answer: 28%.]
•  When did you first become the CFO of Triton Harbor? What year?
•  Who held the CFO position before you, if anyone?
•  Have you held that title continuously from the date you were appointed to the present?
•  Please describe for me the scope of your responsibilities as CFO of Triton Harbor.
[Probe specifically for the following areas of responsibility:]
•  Oversight of financial reporting, including the preparation or supervision of preparation of the Company's annual and interim financial statements.
•  Monitoring and calculating compliance with financial covenants under the Company's credit agreements, including the BRB Credit Agreement.
•  Managing the Company's banking relationships, including all communications with BRB.
•  Treasury management functions, including cash flow forecasting and management of the Company's operating accounts.
•  Oversight of accounts payable and accounts receivable functions.
•  Coordination with the Company's outside auditors and tax advisors.
•  As CFO, were you responsible for preparing or supervising the preparation of the financial statements that were provided to Belmont Ridge Bank under the Credit Agreement?
•  How many employees report to you in the finance function at Triton Harbor?
•  As part of your responsibilities, did you personally sign or approve the quarterly and annual compliance certificates that were delivered to BRB under Section [__] of the Credit Agreement?
•  When you signed or approved those certificates, you understood that they were certifying Triton Harbor's compliance or non-compliance with the financial covenants in the Credit Agreement, correct?
•  Did you take that responsibility seriously?
Goal for this section: Establish beyond any reasonable dispute that Elaine D. Kappel was not a passive equity holder, a figurehead officer, or a spouse who merely co-signed documents at her husband's direction. She was the chief financial decision-maker of the borrower entity, with direct responsibility for covenant compliance, financial reporting, and the banking relationship with BRB. This foundation is essential for every subsequent line of questioning regarding her sophistication, her access to information, and the reasonableness of any reliance she claims to have placed on oral statements.
3.3 Experience with Commercial Lending and Loan Agreements
•  Before the BRB Credit Agreement that we will discuss today, had you ever been involved in negotiating a commercial credit facility, either on behalf of Triton Harbor or on behalf of any prior employer?
•  If so, please describe each such facility, the approximate amount, the lender, and the nature of your involvement.
•  Has Triton Harbor maintained banking relationships with any financial institutions other than BRB?
•  If so, did you manage those relationships as part of your CFO duties?
•  In the course of your career, have you had occasion to review and become familiar with standard commercial loan documentation, including credit agreements, security agreements, personal guaranties, and forbearance or modification agreements?
•  Would you consider yourself familiar with the general structure and purpose of a forbearance agreement — that is, an agreement in which a lender agrees to forebear from exercising its default remedies for a specified period of time in exchange for certain conditions and protections?
•  Before the unlimited personal guaranty you executed on October 6, 2023 — Exhibit E — had you ever previously executed a personal guaranty of any kind?
•  If so, please describe each prior guaranty, the borrower, the lender, and the amount guaranteed.
Goal for this section: Cement her status as a financially sophisticated party who has experience with the very types of documents at issue in this litigation. Under New York law, the sophistication of the party is a critical factor in determining whether reliance on oral representations was justifiable, particularly where the written agreement contains specific disclaimers. See Danann Realty Corp. v. Harris, 5 N.Y.2d 317 (1959).
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.
•  Ms. Kappel, I want to direct your attention to the original Credit Agreement between Belmont Ridge Bank and Triton Harbor Industries, which has been marked as Exhibit A. Do you recognize this document?
•  Were you involved in the negotiation of this Credit Agreement on behalf of Triton Harbor?
•  Please describe the nature of your involvement. Did you participate in meetings with BRB? Did you review drafts of the agreement?
•  This Credit Agreement, dated June 15, 2021, provided for two credit facilities, correct?
•  The first was a Term Loan A in the principal amount of $14,000,000, with an 84-month term, quarterly amortization, and an interest rate of SOFR plus 275 basis points, correct?
•  The second was a Revolving Credit Facility with a commitment of $8,000,000, maturing on June 15, 2026, at an interest rate of SOFR plus 250 basis points, correct?
•  So the total committed credit facilities under this agreement were $22,000,000?
•  Did you review the Credit Agreement before it was executed on behalf of Triton Harbor?
•  Did Triton Harbor engage legal counsel to review the Credit Agreement? If so, please identify the attorney and law firm.
•  Did you have an opportunity to ask questions about the terms of the Credit Agreement before it was signed?
•  You understood the financial covenants contained in the Credit Agreement, correct? Specifically, the Minimum Fixed Charge Coverage Ratio of 1.20x, the Maximum Total Leverage Ratio of 3.50x, and the Minimum Liquidity requirement of $2,000,000?
•  As CFO, you were the person at Triton Harbor primarily responsible for monitoring compliance with those covenants on an ongoing basis, correct?
•  Do you recall what the collateral package was for the original Credit Agreement?
•  The Credit Agreement was secured by a first-priority lien on substantially all assets of Triton Harbor, including marine terminal equipment, accounts receivable, inventory, and a first mortgage on the Company's Long Island City terminal facility located at 50-22 Borden Avenue, Long Island City, New York 11101, correct?
•  At origination, the collateral was appraised by Ridgeline Appraisal Group, Inc. at approximately $18,700,000, correct? [Show Exhibit I for reference to origination value.]
Now transition to the personal guaranty structure at origination — this is important because at origination, Elaine Kappel was not required to provide a personal guaranty:
•  At the time the original Credit Agreement was executed on June 15, 2021, were you asked to provide a personal guaranty of Triton Harbor's obligations?
•  The answer is no, correct? You did not execute a personal guaranty at origination.
•  Only Marcus J. Kappel provided a personal guaranty at that time, correct?
•  And his guaranty was a limited guaranty, capped at $4,500,000, correct? [Show Exhibit B.]
•  So at origination, your personal assets were not at risk with respect to Triton Harbor's borrowings from BRB, is that correct?
4.2 Understanding of No-Commitment Provisions
This line of questioning establishes her baseline understanding that a lender has no obligation to extend credit beyond the terms of a written commitment.
•  At the time the original Credit Agreement was executed, did you understand that BRB's obligation to lend was limited to the terms set forth in the written Credit Agreement?
•  Did you understand that BRB had no obligation to extend credit to Triton Harbor beyond the $22,000,000 in committed facilities described in the agreement?
•  Were you aware that the original Credit Agreement contained provisions stating that the lender had no obligation to extend credit beyond the committed facilities?
•  As a general matter, based on your experience as a CFO and your involvement in commercial banking relationships, do you understand the distinction between a binding written commitment to lend and a general discussion about the possibility of future credit?
•  You would agree, wouldn't you, that a bank is not obligated to extend additional credit to a borrower simply because it has expressed optimism about the relationship or has indicated a willingness to consider future requests?
Goal for this section: Establish a firm baseline understanding — well before the distress period and the forbearance negotiations — that Elaine Kappel knew banks are not obligated to extend credit absent a written commitment. This baseline understanding makes it far more difficult for her to claim she justifiably relied on oral statements during the forbearance negotiations as constituting binding commitments.
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.
•  Ms. Kappel, as Chief Financial Officer, when did you first become aware that Triton Harbor's financial performance was deteriorating relative to the projections and covenant levels contemplated in the Credit Agreement?
•  Let me direct your attention to Exhibit G, which contains Triton Harbor's financial statements for fiscal year 2022 and the first quarter of 2023. Do you recognize these documents?
•  You were responsible for preparing or supervising the preparation of these financial statements, correct?
•  For fiscal year 2022, Triton Harbor reported revenue of approximately $68 million and Adjusted EBITDA of approximately $9.4 million, correct?
•  Turning to Q1 2023, the trailing twelve-month EBITDA had dropped to $5.1 million. You were aware of that decline?
•  As of Q1 2023, the Company's Fixed Charge Coverage Ratio had fallen to 0.87x, which was below the covenant minimum of 1.20x. You calculated or supervised the calculation of that ratio, correct?
•  Similarly, the Total Leverage Ratio had risen to 4.92x, which was above the covenant maximum of 3.50x. You were aware of that as well?
•  So as of Q1 2023, Triton Harbor was in breach of at least two of its financial covenants under the Credit Agreement, correct?
•  You understood that those covenant breaches constituted Events of Default under the Credit Agreement?
Now probe the specific causes of the financial decline:
•  Were you involved in the financial impact analysis when Triton Harbor lost the Port of Bridgehaven municipal contract?
•  That contract represented approximately $12 million per year in revenue to Triton Harbor, correct?
•  When did you first learn that Triton Harbor had lost, or was at risk of losing, the Port of Bridgehaven contract?
•  Were you also involved in analyzing the impact of the loss of the Newark Bay maintenance contract?
•  That contract represented approximately $7.5 million per year in revenue, correct?
•  With the loss of those two contracts — totaling approximately $19.5 million in annual revenue — the Company's annualized revenue run-rate was declining to approximately $48 million, correct?
•  As CFO, you prepared or reviewed financial projections showing this revenue decline?
•  You understood that this level of revenue decline would make it extremely difficult, if not impossible, for Triton Harbor to cure its covenant defaults in the near term, correct?
Goal for this section: Elaine Kappel must be shown to have been fully informed about the depth of Triton Harbor's financial problems. This establishes that she entered the forbearance negotiations with eyes wide open, understanding that the Company was in serious distress and that BRB had every right to exercise its default remedies. The stronger we can establish her awareness of the Company's precarious position, the more difficult it becomes for her to argue that she was somehow deceived or lulled into complacency.
5.2 Credit Downgrade and Transfer to Special Assets Group
•  Are you aware that on or about March 8, 2023, Belmont Ridge Bank downgraded the Triton Harbor credits from a "Pass" rating to a "Substandard" risk rating — specifically, Risk Rating 7?
•  Were you notified of that downgrade? By whom, and when?
•  Are you aware that in connection with the downgrade, the Triton Harbor account was transferred from BRB's regular commercial lending group to its Special Assets Group, or SAG?
•  Were you notified of that transfer?
•  Do you understand what the transfer of a borrower's account to a Special Assets Group signifies about the bank's assessment of the credit?
•  You would agree that the transfer to the Special Assets Group indicated that BRB viewed the Triton Harbor relationship as distressed and potentially impaired?
•  At the time of the downgrade and SAG transfer, the outstanding balances under the Credit Agreement were approximately $11,375,000 on Term Loan A and $6,200,000 drawn on the Revolving Credit Facility, for a total outstanding of approximately $17,575,000, correct?
•  As CFO, you were tracking these outstanding balances?
•  After the account was transferred to the Special Assets Group, your primary contacts at BRB changed, correct? You began dealing with Derek Whitmore, Senior Vice President and Head of the Special Assets Group, and Joanna Reeves, Vice President in the Special Assets Group?
•  Did you understand that the purpose of the Special Assets Group was to manage troubled or distressed credits?
Goal for this section: Confirm that Elaine Kappel understood BRB viewed the Triton Harbor relationship as distressed and impaired — not as a normal, performing banking relationship. This is important context for the September 12, 2023 meeting and the forbearance negotiations that followed: any statements by BRB personnel about a "long-term relationship" or a "path forward" must be understood against the backdrop of a seriously distressed credit that had been transferred to the bank's workout group.
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 personnel.
•  Ms. Kappel, at some point in 2023, Triton Harbor retained the services of a financial advisory firm called Mercer Tidwell & Associates LLC, correct?
•  The managing director at Mercer Tidwell who led the engagement was Raymond Mercer, correct?
•  The Mercer Tidwell offices are located at 245 Park Avenue, 28th Floor, New York, New York 10167?
•  I am showing you Exhibit H, which is the engagement letter between Mercer Tidwell & Associates LLC and Triton Harbor Industries, LLC. Do you recognize this document?
•  Approximately when was Mercer Tidwell retained — can you provide a month and year?
•  Who made the decision to retain Mercer Tidwell? Was that a decision made by Marcus Kappel, by you, or jointly?
•  Were you involved in selecting Mercer Tidwell, as opposed to other financial advisory firms?
•  What was the scope of Mercer Tidwell's engagement? Please describe, as specifically as you can, what you understood Mercer Tidwell was retained to do.
[Probe specifically for the following elements of the engagement scope:]
•  Advising Triton Harbor on the workout process and the Company's strategic options.
•  Negotiating with BRB on behalf of or alongside Triton Harbor.
•  Evaluating the terms of any proposed forbearance agreement, including the financial terms, the additional collateral requirements, and the expanded guaranty demands.
•  Providing financial analysis or modeling to assess the feasibility of the forbearance milestones.
•  Advising on whether and to what extent BRB might be willing to extend new or modified credit facilities.
•  Did you personally participate in meetings or telephone calls with Raymond Mercer and the Mercer Tidwell team?
•  Approximately how frequently did you communicate with Mercer Tidwell during the period from mid-2023 through the execution of the Forbearance Agreement in October 2023?
•  Did Mercer Tidwell advise you or Marcus Kappel on the specific terms of the proposed Forbearance Agreement, including the additional collateral demands and the expanded personal guaranties?
•  Did Mercer Tidwell provide any analysis or opinion on whether BRB was obligated — or even likely — to extend a new revolving credit facility to Triton Harbor?
•  Did Mercer Tidwell ever advise you that the proposed new $6.5 million revolving facility that Triton Harbor hoped to obtain was a certainty, or that BRB had made a binding commitment to provide it?
•  Specifically: Did Raymond Mercer or anyone else at Mercer Tidwell ever tell you that BRB had made a binding commitment to extend a new $6.5 million revolving facility?
•  If Mercer Tidwell did not tell you that BRB had made such a commitment, on what basis did you believe that such a commitment existed?
Goal for this section: The existence of Mercer Tidwell as an independent financial advisor is one of the most powerful facts in our defense. If Triton Harbor had the benefit of a sophisticated financial advisor throughout the workout and forbearance process, and that advisor never confirmed the existence of a binding commitment by BRB to extend new credit, then Elaine Kappel's alleged reliance on informal oral statements by BRB personnel was, by definition, not justifiable.
6.2 Communications Between Elaine Kappel and Mercer Tidwell
•  Did you personally exchange emails, letters, or memoranda with Raymond Mercer or other professionals at Mercer Tidwell during the period of the forbearance negotiations?
•  Did Mercer Tidwell prepare any written analysis, report, or recommendation regarding the terms of the Forbearance Agreement before you signed it?
•  If so, did you review that analysis or report?
•  I am showing you Exhibit O, which consists of correspondence between you and Mercer Tidwell regarding the forbearance terms. [Note to examining attorney: specific documents to be identified from production; adjust questions as needed based on the content of produced documents.]
•  Did Mercer Tidwell ever recommend, in writing or orally, that you condition your execution of the Forbearance Agreement or the personal guaranty on obtaining a written commitment from BRB for future credit?
•  Did Mercer Tidwell ever express concern that the alleged oral promises of future credit were not reflected in the written Forbearance Agreement?
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 examining attorney must be meticulous in pinning down exactly what was said, by whom, and in what context.
•  Ms. Kappel, I want to ask you about a meeting that took place on September 12, 2023. Do you recall that meeting?
•  Where did that meeting take place?
•  [Expected answer: BRB's offices at 1200 Avenue of the Americas, 38th Floor, New York, New York 10036.]
•  Who attended that meeting on behalf of Belmont Ridge Bank?
•  [Expected: Derek Whitmore, SVP, Head of the Special Assets Group, and Joanna Reeves, VP, Special Assets Group.]
•  Who attended on behalf of Triton Harbor?
•  [Expected: Marcus J. Kappel and Elaine D. Kappel.]
•  Was anyone else present? Any representatives from Mercer Tidwell & Associates? Any attorneys? Any other BRB personnel?
•  Approximately how long did the meeting last?
•  Did you take any notes during the meeting?
•  Did anyone else, to your knowledge, take notes?
•  If you did take notes, do you still have them? Have they been produced in this litigation?
7.2 Substance of the Meeting
•  Please describe, in your own words and as specifically as you can recall, what was discussed at the September 12, 2023 meeting.
[Allow the witness to provide a narrative. Do not interrupt. Listen carefully and note any details that can be explored further or that diverge from Marcus Kappel's testimony.]
After the narrative, probe the specific alleged representations:
Alleged Representation No. 1: "Committed to the Long-Term Relationship"
•  You testified a moment ago that [summarize her account]. I want to ask about specific statements. You allege in your counterclaim that Derek Whitmore stated that BRB was "committed to the long-term relationship" with Triton Harbor. Do you recall that?
•  Did Mr. Whitmore use those exact words — "committed to the long-term relationship"?
•  Can you tell me, as precisely as you can recall, what he actually said?
•  What did you understand that statement to mean?
•  Did you understand "committed to the long-term relationship" to constitute a binding contractual commitment, or was it a general expression of the bank's willingness to work with Triton Harbor?
•  In your experience as a CFO, is it unusual for bank officers to express a desire to maintain a long-term relationship with a borrower?
Alleged Representation No. 2: The New $6.5 Million Revolving Facility
•  You also allege that Mr. Whitmore stated something about BRB providing a new $6.5 million revolving credit facility. Do you recall that?
•  What exactly did Mr. Whitmore say about the revolving facility?
•  I want to be very precise. Did Mr. Whitmore say that BRB would provide a new $6.5 million revolving facility? Or did he say that BRB would seriously consider providing one?
•  There is a significant difference between a commitment to do something and an expression of willingness to consider doing it. Would you agree?
•  Did Mr. Whitmore qualify any statement about the new revolving facility? For example, did he mention the need for credit committee approval? Did he reference any conditions, such as completion of the forbearance milestones, satisfactory financial performance, or further due diligence?
•  Did Mr. Whitmore indicate that a new revolving facility would require a separate application, credit analysis, or approval process?
•  At the time of the September 12, 2023 meeting, the Triton Harbor account had been downgraded to "Substandard" and transferred to the Special Assets Group, correct? You were aware of that?
•  In light of that, did you believe it was reasonable to expect that BRB would extend $6.5 million in new credit without any conditions, credit review, or approval process?
•  Did you understand the phrase "seriously consider" to mean a binding promise?
Alleged Representation No. 3: The Additional Collateral as "A Formality to Satisfy Regulators"
•  You also allege that Mr. Whitmore described the additional collateral requirements as "a formality to satisfy regulators." Do you recall that?
•  What exactly did he say?
•  What did you understand by the phrase "a formality to satisfy regulators"?
•  As CFO of a company that borrows from a nationally chartered bank, are you generally aware that bank regulators — such as the Office of the Comptroller of the Currency — impose requirements on banks regarding collateral coverage for distressed loans?
•  So if Mr. Whitmore explained that additional collateral was needed to satisfy regulatory requirements, that statement would have been accurate, wouldn't it?
•  Did anyone at the meeting discuss Section 9(c) of the proposed Forbearance Agreement, or any disclaimer regarding BRB's obligation to extend future credit?
•  Did anyone mention that any commitments regarding future credit would need to be in writing?
Cross-Reference with Marcus Kappel's Testimony:
[Note to examining attorney: Before the deposition, carefully review the transcript of Marcus J. Kappel's deposition of March 11, 2025. Identify any statements by Marcus about the September 12 meeting that differ from Elaine's account. Potential areas of inconsistency include:]
•  The exact words used by Derek Whitmore regarding the new revolving facility ("would provide" vs. "seriously consider" vs. "would look at").
•  Whether Whitmore mentioned any conditions or qualifications.
•  Whether anyone discussed or referenced the written disclaimer provisions in the draft Forbearance Agreement.
•  Whether Mercer Tidwell representatives were present or had been briefed on the meeting before it occurred.
[If inconsistencies are identified, confront the witness carefully:]
•  Ms. Kappel, your husband, Marcus Kappel, was deposed in this matter on March 11, 2025. Are you aware of that?
•  Have you discussed his deposition testimony with him?
•  [If she has discussed it, explore what was discussed and when, to test whether her testimony has been shaped by his.]
•  [If she has not discussed it, proceed to test her independent recollection against Marcus's testimony.]
•  I want to read to you a portion of Mr. Kappel's testimony about the September 12, 2023 meeting. [Read relevant excerpt.] Is that consistent with your recollection?
•  If not, which account is accurate?
Goal for this section: Even under the most favorable reading of Triton Harbor's version of events, the statements allegedly made by Whitmore were aspirational, conditional, or forward-looking — not binding commitments. The questioning should demonstrate that a sophisticated CFO with access to financial and legal advisors would not, and could not, reasonably interpret these statements as binding commitments, particularly in the context of a distressed credit relationship and in light of the explicit written disclaimers in the Forbearance Agreement.
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 the stage for a renewed credit relationship." Do you see that language?
•  Was this email forwarded to you or shared with you by Marcus Kappel?
•  When did you first see this email? Was it before or after you signed the Forbearance Agreement on October 6, 2023?
•  I want to focus on the specific language of this email. Ms. Reeves wrote that BRB was "optimistic about a path forward." What did you understand that phrase to mean?
•  "Optimistic" — that is an expression of hope or a positive outlook, is it not? It is not the same as a commitment or a guarantee, correct?
•  She also wrote that the forbearance "sets the stage for a renewed credit relationship." What did you understand that to mean?
•  "Sets the stage" — that is a metaphor meaning it creates a foundation or possibility, correct? It does not mean the outcome is guaranteed or committed?
•  Did you understand this email to constitute a binding commitment by Belmont Ridge Bank to extend new credit to Triton Harbor?
•  If you did understand it as a binding commitment, can you point to any language in the email that uses the words "commit," "agree," "promise," or "obligate"?
•  Did you discuss this email with Raymond Mercer at Mercer Tidwell?
•  Did you discuss it with any attorney?
•  Did anyone — Mercer Tidwell, your attorney, or anyone else — advise you that this email constituted a binding commitment by BRB?
Goal for this section: The Reeves email is the only piece of written evidence that the Kappels can point to in support of their claim that BRB signaled an intent to extend new credit. By its plain language, however, the email is aspirational and forward-looking, using words like "optimistic" and "sets the stage." The questioning should establish that no reasonable, sophisticated CFO would interpret this email as a binding commitment, particularly when read alongside Section 9(c) of the Forbearance Agreement.
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, approximately two to three weeks.]
•  Who participated in the negotiations on behalf of Triton Harbor?
•  Did Marcus Kappel participate? Did you participate?
•  Did Mercer Tidwell & Associates participate in the negotiations?
•  Did Triton Harbor engage legal counsel to review the draft Forbearance Agreement before it was executed? If so, who was that attorney or law firm?
•  Were there multiple drafts of the Forbearance Agreement exchanged between the parties?
•  Were any provisions of the Forbearance Agreement negotiated or modified at Triton Harbor's request?
•  If so, which provisions? Please describe any changes that were made as a result of Triton Harbor's comments or requests.
•  During the negotiations, was the additional collateral package discussed?
•  Specifically, was the assignment of equipment leases — valued at approximately $2,300,000 — discussed?
•  Was the pledge of the Kappel residence at 14 Birchmont Lane, Westport, Connecticut 06880 — valued at approximately $3,100,000 — discussed?
•  Were you involved in the discussions about providing additional collateral?
•  Did you object to or raise concerns about any of the terms of the Forbearance Agreement during the negotiation process?
•  If you had concerns, did you express them to Mercer Tidwell or to your legal counsel?
•  Was the topic of a new or additional revolving credit facility discussed during the negotiations? If so, did you or anyone on behalf of Triton Harbor ask that a commitment to extend new credit be included in the written Forbearance Agreement?
•  If you did ask, what was BRB's response?
•  If you did not ask, why not?
9.2 Section 9(c) — "No Commitment to Extend Credit"
This is the single most important line of questioning in the entire deposition. The examining attorney must proceed methodically and leave no ambiguity in the record.
•  Ms. Kappel, I am going to direct your attention to Section 9(c) of the Forbearance Agreement, Exhibit C. Do you see the heading "No Commitment to Extend Credit"?
•  I am going to read this provision aloud, and I ask you to follow along as I do so.
"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."
•  Did you hear me read that provision?
•  Now, Ms. Kappel, did you read this provision before you signed the Forbearance Agreement on October 6, 2023?
•  Did you understand what this provision meant?
•  In your own words, what did you understand Section 9(c) to mean?
•  You understood it to mean that, under the terms of this Forbearance Agreement, BRB was not committing to extend any additional credit to Triton Harbor, correct?
•  You understood it to mean that BRB was not committing to provide a new revolving credit facility, correct?
•  You understood it to mean that BRB was not committing to modify the existing credit facilities, correct?
•  Did you discuss Section 9(c) with Marcus Kappel before signing the Forbearance Agreement?
•  Did you discuss Section 9(c) with Raymond Mercer at Mercer Tidwell & Associates?
•  Did you discuss Section 9(c) with the attorney or law firm that reviewed the Forbearance Agreement on behalf of Triton Harbor?
•  Did anyone from BRB prevent you from reading the Forbearance Agreement in its entirety before signing?
•  Were you pressured or coerced into signing the Forbearance Agreement without having had an adequate opportunity to review it?
•  You had as much time as you needed to review the agreement before signing, correct?
•  Now, Ms. Kappel, you have testified that you read and understood Section 9(c), which states in unequivocal terms that the Forbearance Agreement does not constitute a commitment by BRB to extend additional credit. How do you reconcile that understanding with the allegation in your counterclaim that BRB committed to provide a new $6.5 million revolving credit facility?
•  If you believed, at the time of the September 12, 2023 meeting, that BRB had orally committed to extend a new revolving facility, did Section 9(c) give you any pause or concern?
•  When you read Section 9(c), did you understand that it contradicted the alleged oral promise?
•  Did you raise this apparent contradiction with anyone — Marcus Kappel, Mercer Tidwell, or your attorney?
•  Did you ask BRB to remove Section 9(c) from the Forbearance Agreement?
•  Did you ask BRB to replace Section 9(c) with a provision committing to extend a new revolving facility?
•  Did you condition your signature on the inclusion of a written commitment for future credit?
•  If the alleged oral promise of a new $6.5 million revolving facility was as important to you as your counterclaim suggests — indeed, you allege it was the very inducement that caused you to sign the Forbearance Agreement and the personal guaranty — why did you sign a document that explicitly disclaimed any such commitment?
Goal for this section: Obtain a clear, unambiguous, on-the-record admission that Elaine Kappel read and understood Section 9(c) before signing the Forbearance Agreement. This admission is directly fatal to the justifiable reliance element of her fraudulent inducement counterclaim. Under New York law, a sophisticated party who signs an agreement containing a specific disclaimer cannot later claim justifiable reliance on oral representations that are directly contradicted by the disclaimer. The examining attorney should not rush through these questions. Each question should be asked clearly, and the witness should be given time to answer. Do not let counsel's objections derail the momentum.
9.3 Section 12(a) — Integration Clause
•  Ms. Kappel, I now direct your attention to Section 12(a) of the Forbearance Agreement. Please read Section 12(a) to yourself.
•  [After the witness has read it:] This is an integration clause, correct?
•  Did you read this provision before signing the Forbearance Agreement?
•  Do you understand what an integration clause does?
•  You understood that this clause meant the Forbearance Agreement was intended to be the entire agreement between Belmont Ridge Bank and Triton Harbor with respect to the subject matter of the agreement?
•  You understood that it superseded any and all prior oral statements, representations, discussions, or understandings between the parties relating to the subject matter of the agreement?
•  So even if Mr. Whitmore or Ms. Reeves made oral statements at the September 12, 2023 meeting about a possible future revolving facility, this integration clause states that the written Forbearance Agreement — not those oral statements — constitutes the entire agreement. You understood that?
•  Did you discuss the integration clause with your attorney?
•  Did you discuss it with Mercer Tidwell?
Goal for this section: Even if the examining attorney does not obtain a complete concession on Section 9(c), the integration clause provides an independent basis for defeating the justifiable reliance argument. Under New York law, an integration clause in a commercial agreement between sophisticated parties is generally enforceable to bar claims of reliance on prior oral representations.
9.4 Forbearance Terms — Her Understanding
•  Let me walk through the key terms of the Forbearance Agreement to make sure we have a complete understanding of what you agreed to. The Forbearance Agreement provided for a 180-day forbearance period, running from October 6, 2023 through April 3, 2024, correct?
•  During that period, Triton Harbor was required to make monthly debt service payments of $125,000, for a total of $750,000 over the six-month forbearance period, correct?
•  Triton Harbor was also required to pay a forbearance fee of $87,500, which was 0.50% of the approximately $17,500,000 outstanding under the Credit Agreement?
•  Triton Harbor was required to provide additional collateral, consisting of an assignment of equipment leases valued at $2,300,000 and a pledge of the Kappel family residence at 14 Birchmont Lane, Westport, Connecticut 06880, valued at $3,100,000?
•  One of the milestones for the forbearance was the restoration of the Fixed Charge Coverage Ratio to at least 1.20x by the end of the 180-day period, correct?
•  What did you understand would happen if the forbearance milestones were not met at the end of the 180-day period?
•  You understood that if the covenant-cure milestone was not achieved, the forbearance would expire and BRB would be free to exercise all of its default remedies, including acceleration of the outstanding obligations, correct?
•  You understood that acceleration could lead to foreclosure on the collateral, including the Long Island City terminal facility and the Kappel residence?
•  You understood all of this before you signed the Forbearance Agreement?
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 to BRB, correct?
•  At origination, only Marcus Kappel provided a personal guaranty, and it was limited to $4,500,000, correct?
•  On October 6, 2023, you executed a personal guaranty. I am showing you Exhibit E. Do you recognize this document?
•  This is an unlimited personal guaranty, correct? There is no dollar cap on your liability under this guaranty?
•  Who asked you to execute this guaranty? Was it a condition imposed by BRB as part of the forbearance negotiations?
•  Did you understand the difference between a limited personal guaranty — such as the $4,500,000 guaranty Marcus originally signed — and an unlimited personal guaranty?
•  Please explain that difference as you understand it.
•  You understood that by signing an unlimited personal guaranty, you were exposing all of your personal assets to collection in the event of a default by Triton Harbor, correct?
•  You understood that those personal assets included the family residence at 14 Birchmont Lane, Westport, Connecticut 06880, which was appraised at $3,100,000?
•  You understood that the total outstanding obligations at the time you signed the guaranty were approximately $17,500,000?
•  Before you signed the guaranty, did you consult with an attorney?
•  If so, who was that attorney? What was the attorney's advice? [Note: If privilege is asserted, do not press for the substance of the advice, but establish the fact of consultation.]
•  Before you signed the guaranty, did you consult with Raymond Mercer at Mercer Tidwell & Associates?
•  Were you pressured or coerced into signing the guaranty by anyone?
•  Did anyone threaten you with adverse consequences if you refused to sign?
•  Did you have the opportunity to decline to sign the guaranty?
•  If you had refused to sign, what do you believe would have happened?
•  You signed the guaranty voluntarily, correct?
•  Now, Ms. Kappel, what induced you to sign the unlimited personal guaranty?
[This is the critical question. Anticipate that she will reference the alleged oral promises about the $6.5 million revolving facility and BRB's alleged commitment to the long-term relationship. Whatever she says, follow up immediately:]
•  You testified that you were induced to sign the guaranty by [summarize her answer]. Is that correct?
•  If the alleged promise of a new $6.5 million revolving credit facility was the inducement that caused you to sign an unlimited personal guaranty, why did you not insist that such a commitment be included in the written Forbearance Agreement?
•  You had the assistance of a financial advisor — Mercer Tidwell — correct?
•  You had the assistance of legal counsel, correct?
•  Either your financial advisor or your attorney could have drafted a provision committing BRB to extend the new revolving facility, correct?
•  Either of them could have advised you not to sign the guaranty until a written commitment was obtained, correct?
•  But you signed the unlimited personal guaranty anyway, even though the written Forbearance Agreement contained no commitment to extend new credit, and even though Section 9(c) specifically disclaimed any such commitment, correct?
Goal for this section: Establish conclusively that Elaine Kappel had every opportunity to protect herself. She had access to a sophisticated financial advisor and legal counsel, she had ample time to review the documents, and she was not coerced. She voluntarily signed an unlimited personal guaranty in the face of a clear written disclaimer. If the alleged oral promise was truly the inducement, her failure to insist on a written commitment — when she had every means and opportunity to do so — fatally undermines her claim of justifiable reliance.
10.2 Marcus Kappel's Amended Guaranty
•  Were you aware that, at the same time you were signing the unlimited personal guaranty, Marcus Kappel's guaranty was being amended from a limited guaranty of $4,500,000 to an unlimited guaranty?
•  I am showing you Exhibit D, which is the Amended Unlimited Personal Guaranty of Marcus J. Kappel, dated October 6, 2023. Were you aware of this document?
•  Did you and Marcus discuss the implications of both of you being exposed to unlimited personal liability on approximately $17,500,000 in outstanding obligations?
•  Did you discuss this with Mercer Tidwell or with your attorney?
•  Did the fact that both of you were assuming unlimited liability give you any pause about signing?
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 equipment leases and the pledge of the Kappel residence?
•  As CFO, you were responsible for, or involved in, preparing the monthly financial reports required under the Forbearance Agreement?
•  Did you prepare or supervise the preparation of those reports?
•  Did you submit them to BRB?
•  Were the monthly reports accurate, to the best of your knowledge?
11.2 Covenant-Cure Failure
•  As of March 31, 2024 — the end of the forbearance period — the Fixed Charge Coverage Ratio was 0.94x, correct?
•  The covenant minimum was 1.20x, correct?
•  So the covenant-cure milestone was not met — Triton Harbor fell short by 0.26x?
•  Ms. Kappel, as CFO, you were monitoring the FCCR throughout the forbearance period, correct?
•  At what point during the forbearance period did you first realize that the FCCR was not on track to reach 1.20x by the end of the period?
•  Was it apparent to you midway through the forbearance period — say, by January or February 2024 — that the covenant-cure milestone was unlikely to be achieved?
•  What steps, if any, did you take to try to improve the FCCR?
•  Did you communicate to BRB that the covenant cure was not going to be achieved?
•  If so, when, and to whom?
•  Did you communicate this to Mercer Tidwell?
•  Did you request an extension of the forbearance period from BRB?
•  If so, what was BRB's response?
•  If not, why not?
•  When the forbearance period expired on April 3, 2024 with the FCCR at 0.94x, you understood that BRB was contractually entitled to exercise all of its default remedies, including acceleration, correct?
Goal for this section: Establish that the acceleration was not a surprise to Elaine Kappel. She knew — as CFO and as the person responsible for monitoring the FCCR — that the covenant-cure milestone would not be met well before the forbearance period expired. This undercuts the narrative, implicit in the counterclaims, that BRB's acceleration was part of a preconceived scheme or bad-faith strategy. BRB exercised a contractual right triggered by a covenant failure that the Company's own CFO saw coming.
11.3 Expectations Regarding Future Credit
•  During the forbearance period