OPINION & ORDER Before the Court is a motion by Defendant Harvest Capital Credit Corporation (“Harvest”) to dismiss Count II of Plaintiffs’ Ross Jackson and the Gary A. Zebrowski Living Trust (together, “Plaintiffs”) amended complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, Harvest’s motion is DENIED.I. BackgroundUnless otherwise noted, the following facts are drawn from the amended complaint. Plaintiff Ross Jackson (“Jackson”) is an individual who resides and maintains a principal place of business in Colorado. (Am. Compl. 6.) Plaintiff the Gary A. Zebrowski Living Trust (“Zebrowski”) is a trust formed under the laws of Oklahoma with its principal place of business in Pennsylvania. (Id. 7.) Harvest is a corporation that provides customized financing to small businesses through senior secured debt, organized under the laws of Delaware with its principal place of business in New York City. (Id. 8; Harvest’s Mem. of L. in Supp. of Mot. to Dismiss at 1, ECF No. 23 (filed Aug. 29, 2017).) Defendant Christals Acquisitions, LLC (“Christals”) is a limited liability company existing under the laws of Delaware with a principal place of business in Auburn, Washington. (Am. Compl. 9.)On October 9, 2012, in connection with a Purchase Agreement (the “Purchase Agreement”) between Christals, Plaintiffs, and Retail Services LLC, Christals issued to each of Jackson and Zebrowski an unsecured subordinated promissory note in the amount of $1,550,000 and a contingent subordinated promissory note in the amount of $150,000, both with a maturity date of January 9, 2017 (together, the “Promissory Notes”). (Id. 1.) The Promissory Notes were issued to Plaintiffs in connection with the sale of businesses and assets owned by Plaintiffs. (Id. 3.) In order for Christals to complete such acquisition, on October 9, 2012, Christals entered into a Securities Purchase Agreement with Harvest (the “SPA”) pursuant to which Christals issued to Harvest promissory notes and other evidence of indebtedness in favor of Harvest in amounts as much as $4,630,000 (the “Harvest Loan”). (Id.) Pursuant to the SPA, as security for the Harvest Loan, Christals granted a first and priority security interest in favor of Harvest in all of the assets which Christals acquired pursuant to the Purchase Agreement. (Id.)On October 9, 2012, Christals, Harvest, and Plaintiffs entered into a Subordination Agreement (the “Subordination Agreement”), pursuant to which Plaintiffs subordinated the Promissory Notes to the Harvest Loan. (Id. 4.) Pursuant to the Subordination Agreement, Harvest agreed that it would not amend or modify the “Senior Note Documents” or consent or grant any waiver under the Senior Note Documents that would allow Christals to incur additional indebtedness to persons other than Harvest which would be senior to the Promissory Notes, other than indebtedness in a principal amount not exceeding $2 million. (Id.
26, 32.) “Senior Note Documents” is defined in the Subordination Agreement as “the ‘Securities Purchase Agreement’ and, together with the ‘Note Documents’ under and as defined therein.” (Subordination Agreement at 1, Am. Compl. Ex. E, ECF No. 11-5 (filed July 24, 2017).) Harvest also covenanted that there would be no indebtedness senior to the Promissory Notes of more than $6 million of outstanding principal at any time. (Am. Compl.
