Full opinion text
MEMORANDUM AND ORDER RE: CERTAIN DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT (DOCKET ENTRY #35); PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT (DOCKET ENTRY #25); MOTION OF ANGLO IRISH BANK CORPORATION, PLC TO DISMISS (DOCKET ENTRY #55); COUNT XI DEFENDANTS’ MOTION TO DISMISS COUNT XI OF THE VERIFIED COMPLAINT AND FOR COSTS (DOCKET ENTRY # 63); PLAINTIFF’S SECOND MOTION FOR PARTIAL SUMMARY JUDGMENT (DOCKET ENTRY #96) BOWLER, United States Magistrate Judge. Pending before this court are the following dispositive motions: (1) a motion to dismiss (Docket Entry # 55) filed by defendant Anglo Irish Bank Corporation, PLC (“Anglo”); (2) a motion for partial summary judgment (Docket Entry #25) filed by plaintiff E. Mark Noonan (“Noonan”); (3) a cross motion for summary judgment (Docket Entry # 35) filed by defendants Wonderland Greyhound Park Realty LLC (“Realty”), Wonderland Parking, Inc. (“Wonderland Parking”), Wonderland Greyhound Park, Inc. (“Greyhound Park”), the Westwood Group, Inc. (“West-wood”), Richard P. Dalton (“Dalton”) and Charles F. Sarkis (“Sarkis”) (collectively “the Wonderland defendants”), Sterling Suffolk Racecourse, LLC (“SSR”) and Coastal Development Massachusetts, LLC (“Coastal”); (4) a motion to dismiss Count XI and for costs (Docket Entry # 63) filed by Greyhound Park, Dalton and Sarkis; and (5) a second motion for partial summary judgment filed by Noonan (Docket Entry # 96). After conducting a hearing on the first four motions, this court took those motions (Docket Entry # # 25, 35, 55 & 63) under advisement. The second motion for partial summary judgment (Docket Entry # 96) is based upon events subsequent to the verified complaint and also ripe for review. PROCEDURAL BACKGROUND The present real estate dispute arises out of amendments, advances and changes made to various loan documents on the part of Anglo, a first or senior mortgagee, and/or Realty, a borrower and mortgagor of property located in Revere, Massachusetts. Noonan holds a second mortgage and note on the property. Among Noonan’s primary complaints are Realty’s failure to pay the amount due on the second mortgage and the second promissory note on the September 12, 2007 maturity date; Anglo’s $1,000,000 increase to the principal of the first mortgage and the first promissory note in August 2006; Anglo’s amendments to the terms of the first mortgage and the first promissory note without Noonan’s consent at various times; and the issuance of property purchase and note purchase options to Coastal and Sarkis in 2008 in contravention of Noonan’s option to purchase loan documents. Noonan maintains there were a number of events of default which entitled him to bring this suit and purchase the loan documents. Absent a continuing event of default under the first mortgage, Noonan also asserts his entitlement to payment in full at maturity on September 12, 2007. To date, Noonan has not received any payments. The verified complaint sets out the following counts: (1) declaratory relief against all defendants (Count I); (2) breach of contract against Realty for failure to pay the principal, interest and associated charges on the maturity date of the second mortgage or thereafter (Count II); (3) breach of contract, in particular, covenants in paragraphs 16 and 17 of the second mortgage, against Realty (Count III); (4) breach of contract, in particular, an intercreditor agreement, against Anglo (Count IV); (5) breach of the implied covenant of good faith and fair dealing in the second mortgage and the intercreditor agreement against Realty and Anglo (Count V); (6) appointment of a receiver and an order to marshal and preserve the assets of Realty, Wonderland Parking and Greyhound Park in order to pay Noonan (Count VI); (7) reach and apply against Wonderland Parking and Greyhound Park (Count VII); (8) reach and apply against Westwood (Count VIII); (9) reach and apply against Coastal and SSR (Count IX); (10) equitable subordination of advances Anglo made to Realty without Noonan’s consent (Count X); (11) breach of fiduciary duty on the part of Greyhound Park, Dalton and Sarkis (Count XI); (12) impairment of Noonan’s security interest by increasing the principal in the first promissory note and amending the loan to value ratio of the first mortgage against Realty and Anglo (Count XII); (13) intentional interference with the second mortgage and the second promissory note by Anglo (Count XIII); (14) intentional interference with the intercreditor agreement by Realty (Count XIV); (15) intentional interference with the second mortgage, the second promissory note and the intercreditor agreement by Westwood (Count XV); (16) violations of Massachusetts General Laws chapter 93A (“chapter 93A”) against Realty, Westwood and Anglo (Count XVI); and (17) an accounting against Realty, Wonderland Parking and Greyhound Park (Count XVII). After the December 2008 filing of the verified complaint, certain events transpired that led to the exercise and transfer of the property purchase and loan purchase options in February 2010. These subsequent events are the subject of the second summary judgment motion. FACTUAL BACKGROUND The only asset of Realty, a wholly owned subsidiary of Westwood, consists of approximately 34 acres of property in Revere (“the property”). Greyhound Park leases a portion of the property to operate a greyhound dog racing track. Wonderland Parking leases a different portion of the property upon which it operates a commuter parking lot. In the middle of 2005, the Wonderland defendants sought financing to pay off existing mortgage loans and obtain funding for approximately two years of working capital. An internal Anglo document as well as an April 2005 appraisal commissioned by Dalton, President and Chief Executive Officer of Westwood, reflects the property’s value in the range of $14,400,000 to $17,300,000 as of March 29, 2005. A July 2005 credit committee application to Anglo from Realty denotes the purpose as refinancing existing debt and funding “operating shortfalls pending the sale of the property.” (Docket Entry # 25, Ex. 2). An internal summary of the deal attached to the application demonstrates that Anglo agreed to refinance existing debt and cover operating shortfalls up to a 60% maximum loan to value ratio with Sarkis to cover other losses. The summary characterizes the commuter parking lot as the “biggest revenue driver.” (Docket Entry # 25, Ex. 2). From 2005 to November 2009 when Massachusetts abolished greyhound dog racing, the greyhound dog racing track suffered yearly operating losses. In contrast, the commuter parking lot averaged annual revenues of approximately $550,000 during the past several years. A. The Original Loan Documents As a result of Realty’s efforts, on September 12, 2005, Realty granted a first mortgage on the property to Anglo and its successors and assigns (“the first mortgage”) to secure payment of an $8,820,000 loan evidenced by a promissory note (“the first loan” or “the first promissory note”) between Realty, the borrower or mortgagor, and Anglo, the lender or mortgagee. Under an Advance/Holdbaek Letter (“the holdback agreement”) dated September 12, 2005, with Realty, Anglo agreed to disburse an initial advance of $7,350,000 and, subject to Anglo’s discretion and various terms, the remaining sum of $1,470,000 one year later. Sarkis executed a guaranty to Anglo individually guaranteeing Realty’s prompt payment of the $8,820,000 loan (“the guaranty”). Under the guaranty, Sarkis agreed inter alia to pay the costs and expenses of Realty, including interest payments, taxes and insurance, in the event Realty did not make the payments. (Docket Entry # 25, Ex. 9, ¶ 1(b)). Realty granted a Second Mortgage and Security and Fixture Financing Statement (“the second mortgage”) on the property to Noonan. The second mortgage secured payment of a $3,929,000 loan evidenced by a second mortgage note (“the second loan” or the “second promissory note”) between Realty, again as borrower or mortgagor, and Noonan, the payee or mortgagee. Realty executed the first mortgage and the first promissory note (collectively “the senior loan documents”) and the second mortgage and the second promissory note (collectively “the subordinate loan documents”) on the same day, September 12, 2005. Sarkis, a previous client with a preexisting relationship with Anglo, likewise executed the guaranty on September 12, 2005. Also on September 12, 2005, Anglo, as senior lender, Noonan, as subordinate lender, and Realty, as borrower, entered into an Intercreditor and Subordination Agreement (“the ICA”) subordinating Noonan’s right of payment under the subordinate loan documents to Anglo’s right of payment under the senior loan documents. 1. The ICA The terms of the first and second mortgages and concomitant promissory notes together with the terms of the ICA provide the basis to examine the disputed transactions and amendments to the loan documents. Turning first to the ICA, which is the only document executed by Realty, Anglo and Noonan, it begins with a recitation of certain facts. First, the agreement describes the senior and subordinate loan documents including that “Senior Lender has agreed to make a first mortgage loan to Borrower in the principal sum of $8,820,000 (‘Senior Loan’).” After this definition of the “Senior Loan” and additional descriptions of the subordinate loan documents, the ICA states that: Senior Lender is unwilling to make the Senior Loan to the Borrower or permit the Borrower to further encumber the Property with the Subordinate Mortgage unless the Subordinate Loan Documents are subordinated to the Senior Loan Documents. (Docket Entry #25, Ex. 10, ¶0). After these factual statements, the ICA sets out the representations and the agreements between the parties in 20 numbered paragraphs all prefaced by the language, “[T]he parties hereto represent, warrant and agree as follows.” (Docket Entry # 25, Ex. 10). Under the ICA, Noonan agreed to subordinate the second mortgage, the second promissory note and other documents evidencing the $3,929,000 loan to Anglo’s right of payment under the first promissory note, the first mortgage, an assignment of leases and rents and other documents evidencing the $8,820,000 loan. Noonan further agreed to subordinate the liens and security interests created under the “Subordinate Loan Documents” to the liens and security interests created under the “Senior Loan Documents” including amendments and advances “made or hereafter to be made” under the “Senior Loan Documents.” (Docket Entry # 25, Ex. 10, ¶ 2). The critically relevant language, which appears in paragraph two, reads as follows: Subordinate Lender hereby agrees that (a) the Subordinate Indebtedness is and shall be subject and subordinate in the right of payment to the Senior Indebtedness and (b) the liens and security interests created by the Subordinate Loan Documents are and shall be in all respects subject and subordinate to the liens and security interests created by the Senior Loan Documents and to any and all amendments, modifications, extensions, replacements or renewals of the Senior Loan Documents, and to any and all advances heretofore made or hereafter to be made under the Senior Loan Documents pursuant to the terms thereof. The foregoing shall apply, notwithstanding ... the actual date and time of execution, delivery, recordation, filing or perfection of the Senior Mortgage or the Subordinate Mortgage, or the lien or priority of payment thereof (Docket Entry # 25, Ex. 10, ¶ 2) (emphasis added). Paragraph five of the ICA barred Noonan from amending the terms of the second mortgage and the second note without obtaining Anglo’s consent. It also prevented Noonan from transferring or assigning part of the second mortgage or the second promissory note without Anglo’s consent. The ICA does not include a corresponding provision preventing Anglo from amending the terms or transferring part of the first mortgage or the first promissory note without Noonan’s consent. Rather, under paragraph two, Noonan “agree[d]” to subordinate the liens and security interests of the second mortgage and the second promissory note to the “Senior Loan Documents,” a definition that includes the first mortgage and promissory note, “to any and all amendments ... of the Senior Loan Documents” and to “any and all advances heretofore made or hereafter to be made under the Senior Loan Documents pursuant to the terms thereof” (Docket Entry # 25, Ex. 10, ¶ 2) (emphasis added). Paragraph three of the ICA prevented or postponed Noonan from receiving payments under the second loan until payment in full of the “Senior Indebtedness.” The paragraph further provided that if there was no “Event of Default” under any senior loan document, Noonan could receive “regularly scheduled payments” but not prepayments. The relevant language reads as follows: Until such time as the Senior Indebtedness has been paid in full, the payment of all or any part of the Subordinate Indebtedness shall be postponed and subordinated to the payment in full of the Senior Indebtedness and Subordinate Lender shall not accept or receive, nor shall Borrower make, any payment on account of the Subordinate Loan except as expressly permitted by this Agreement. Notwithstanding the foregoing, so long as no Event of Default under any Senior Loan Document has occurred and is continuing, Subordinate Lender shall be permitted to receive regularly scheduled payments (but not prepayments) as provided in the Subordinate Loan Documents. (Docket Entry # 25, Ex. 10, ¶ 3). 2. Events of Default As indicated by the last clause of paragraph three, the ICA defines “Event of Default” in reference to the senior loan documents. Turning to these documents, the first mortgage lists 17 events which constitute an “Event of Default” in section eight. At the time of the first mortgage’s execution, certain events of default under the senior loan documents required notice by Anglo whereas others did not require notice. With regard to the ones that did not require notice, Anglo and Realty executed a Second Amendment of Security Instruments on October 28, 2008, that defined these events of default as now requiring ten days notice. (Docket Entry # 25, Ex. 65, ¶ 11). In seeking summary judgment, Noonan relies on a number of the designated events of default in the first mortgage that always required notice. These include: (1) the nonpayment of principal or interest “when it shall become due and payable” and such nonpayment shall have continued for more than ten (10) days after notice” from Anglo to Realty (Docket Entry # 25, Ex. 6, ¶ 8.1); (2) absent a different notice specified elsewhere, the nonobservance of covenants for more than 30 days after notice from Anglo to Realty (Docket Entry # 25, Ex. 6, ¶ 8.3); and (3) Realty’s failure to maintain a loan to value ratio of not more than 60% which continues for more than 30 days after notice from Anglo to Realty (Docket Entry #25, Ex. 6, ¶ 8.16). Noonan also relies on seven of the 17 designated default events (Docket Entry #26, ¶13(3); Docket Entry #27, ¶¶ 87-117) which did not require notice prior to the aforementioned October 2008 amendment. Section 8.4, the first of the seven provisions, is a catch all provision defining an event of default under the first mortgage as “any ‘Event of Default’ ” under the first promissory note “which would entitle Mortgagee [Anglo] to exercise any of its remedies under any of the Security Instruments or any of the Other Documents.” (Docket Entry # 25, Ex. 6, ¶ 8.4). Section 8.6 prescribes “[t]he cancellation, lapse or termination of any insurance coverage required to be maintained by [Realty].” Section 8.9 defines an event of default as a breach of representations or warranties. Section 8.10 defines an event of default under the first mortgage as encompassing any event of default under the second mortgage or the second promissory note. The relevant language of the section states that an event of default under the first mortgage includes “[t]he occurrence of any ‘event of default’ under any document, agreement or instrument ... (b) evidencing any obligation or other indebtedness secured in whole or in part by any and all of the property covered by any of the Security Instruments.” (Docket Entry # 25, Ex. 6, ¶¶ 1 & 8.10). Because the property secured payment of the second loan evidenced by the second mortgage and the second promissory note, the foregoing language encompasses an event of default under the second mortgage and the second promissory note. Section 21 of the second mortgage alphabetically lists seven events each constituting an “Event of Default” under the second mortgage. These include a failure to pay principal and interest “when due” under the second promissory note (Docket Entry # 25, Ex. 8, ¶ 21(a)); an untrue or unfulfilled warranty in the second promissory note or the second mortgage (Docket Entry # 25, Ex. 8, ¶ 21(c)); a failure to observe or perform any covenant, agreement, term or provision in the second promissory note (Docket Entry # 25, Ex. 8, ¶ 21(e)) or in the second mortgage (Docket Entry # 25, Ex. 8, ¶ 21(g)); and an event of default under the second promissory note (Docket Entry #25, Ex. 8, ¶ 21(f)). Section 8.12(a) of the first mortgage classifies Realty’s insolvency or inability to pay its debts as an event of default under the first mortgage. (Docket Entry # 25, Ex. 6, ¶ 8.12(a)). Section 8.12(d), which also did not require a notice by Anglo, identifies the entry of a judgment or an attachment of Realty’s property as an event of default if the event had a materially adverse impact on Realty’s ability to perform its obligations under the senior loan documents. In pertinent part, section 8.12(d) defines an event of default as, “The entry of any judgment against, or the attachment or garnishment of any of the property, goods or credits of, Mortgagor ..., which remains unpaid, unstayed, undismissed or unbonded for a period of thirty (30) days if the same would have a material adverse impact on the ability of Mortgagor ... to perform its obligations under any of the Loan Documents.” (Docket Entry # 25, Ex. 6, ¶ 8.12(d)). Section 8.17, in turn, requires Realty to notify Anglo of any condition that constitutes a default within ten days of the occurrence of the condition. (Docket Entry # 25, Ex. 6, ¶ 8.17). 3. Section 13 of ICA Returning to the provisions of the ICA, paragraph 13 also uses the term “Event of Default” under the senior loan documents. In particular, the section gives Noonan the right to purchase the senior loan documents “[u]pon the occurrence of an Event of Default under the Senior Loan Documents.” (Docket Entry #25, Ex. 10, ¶ 18). The relevant language reads as follows: Upon the occurrence of an Event of Default under the Senior Loan Documents, and provided that Senior Lender has not foreclosed upon all or any portion of the Property, Subordinate Lender shall have the right, but not the obligation, to purchase the Senior Loan Documents for a purchase price equal to the sum of .... ” (Docket Entry # 25, Ex. 10, ¶ 13). Paragraph 13 did not contain a requirement for Anglo or Realty to notify Noonan of the existence of an event of default. Paragraph 11, however, allowed Noonan to obtain the necessary information. Paragraph 11, which appears two paragraphs above paragraph 13, reads as follows: Each party shall, within ten (10) days after request from the other party, provide periodic estoppel certificates ... setting forth, without limitation, the current outstanding principal balance of the Senior Indebtedness or the Subordinate Indebtedness, as the case may be, whether there exist, to the best of their knowledge, any defaults under the Senior Loan Documents or the Subordinate Loan Documents, as the case may be, and such other matters as the requesting party may reasonably require. (Docket Entry # 25, Ex. 10, ¶ 11). Paragraph nine, which directs Anglo to give Noonan any notice of default it gave or received, states that: Senior Lender shall deliver to Subordinate Lender copies of any notice of default or other notice give[sic] or received by Senior Lender with respect to the Senior Indebtedness and Subordinate Lender shall have the right to cure any default under any of the Senior Loan Documents within the applicable cure periods set forth in such Senior Loan Documents. (Docket Entry # 25, Ex. 10, ¶ 9). 4. Standstill and Remaining Provisions of ICA Paragraph two of the ICA, as previously noted, contains a standstill provision. Under this provision, Noonan “agree[d] not to contest, or to bring or join in any action or proceeding for the purpose of contesting, the validity, perfection or priority of, or seeking to avoid, any rights of Senior Lender in or with respect to the Senior Loan Documents or the Property.” (Docket Entry # 25, Ex. 10, ¶ 2). Paragraph six of the ICA prevented Noonan from collecting or enforcing the second mortgage and the second promissory note without Anglo’s prior written consent absent satisfaction of the senior indebtedness. The relevant language reads: Unless and until all Senior Indebtedness shall have been satisfied in full, Subordinate lender will not, without the prior written consent of Senior Lender (which consent may be withheld in the sole and absolute discretion of Senior Lender without regard to reasonableness), take any action: (a) to assert, collect or enforce all or any part of the obligations secured or evidenced by the Subordinate Mortgage or the Subordinate Loan Documents as against the Property or the Borrower or any other person or entity who or which may be liable to Senior Lender in respect of the Senior Loan Documents; or (c) to obtain any other mortgage, attachment, judgment or other lien against the Property or any other property of the Borrower or any other person or entity who or which may be liable to Senior Lender in respect of the Senior Loan Documents. (Docket Entry # 25, Ex. 10, ¶ 6). In the event of such an action or proceeding, section 6(c) dictated the appointment of a receiver “by the court” to collect any “rents, issues and profits of the property.” (Docket Entry # 25, Ex. 10, ¶ 6(c)). The ICA additionally provided for specific performance or injunctive relief if no adequate remedy at law existed for a breach of the agreement. (Docket Entry #25, Ex. 10, ¶ 19). Three final provisions of the ICA give Anglo additional protection. Section 6(b) barred Noonan from instituting an enforcement action or a foreclosure proceeding that would terminate third party leases. Section 15 provided that any act or failure to act on the part of Realty or any non-compliance on the part of Realty with any agreement shall not prejudice Anglo. It provides in pertinent part that: Senior Lender shall not be prejudiced in its rights under this Agreement by any act or failure to act of Borrower or Subordinate Lender, or any non-complianee of Borrower or Subordinate Lender with any agreement or obligation, regardless of any knowledge thereof which Senior Lender may have or with which Senior Lender may be charged; and no action of Senior Lender permitted hereunder shall in any way affect or impair the rights of Senior Lender and the obligations of Subordinate Lender under this Agreement. (Docket Entry # 25, Ex. 10, ¶ 15). Section 20 dictated that the provisions of the ICA would prevail over the provisions of the “Subordinate Mortgage Loan Documents,” a term that included the second mortgage and the second promissory note. Section 20 states that, “In the event of any conflict between the provisions of this Agreement and the provisions of the Subordinate Mortgage or the Subordinate Mortgage Loan Documents the provisions of this Agreement shall prevail.” (Docket Entry #25, Ex. 10, ¶20). The ICA did not contain an integration clause. 5. First Mortgage Turning to the other documents executed on September 12, 2005, the first mortgage gave Anglo the ability to extend the time and the terms of payment of the “Obligations.” “Obligations” is a defined term in the first mortgage which means: (i) Payment of the indebtedness of Mortgagor to Mortgagee evidenced by the Note; (ii) payment by Mortgagor to Mortgagee of any and all sums expended or advanced by Mortgagee pursuant to any term or provision of this Mortgage; and (iii) performance and observances by Mortgagor of each and every covenant, condition and obligation contained in the Note, this Mortgage, the Loan Agreement .... (Docket Entry # 25, Ex. 6, ¶ 3). In addition to allowing Anglo to extend the time of payment, section 9.3 gave Anglo the ability to waive or modify these obligations. The section reads, in part, as follows: Mortgagee, at any time and from time to time, either before or after maturity of the Note, irrespective of whether any Default Condition then exists and without notice or consent, may do any one or more of the following: ... (b) make any agreement extending the time, or otherwise altering the terms of payment of the Obligations or any part thereof, or modifying or waiving any of the Obligations, or subordinating, modifying or otherwise dealing with the lien or liens securing payment of the Obligations; (c) exercise or refrain from exercising or waive any right Mortgagee may have; (d) accept additional security of any kind .... (Docket Entry # 25, Ex. 6, ¶ 9.3). Section 9.3 thus gave Anglo the ability to waive or modify the obligations, a term that includes not only the terms of payment but also performance of “every covenant, condition or obligation” in the promissory note and the first mortgage. (Docket Entry # 25, Ex. 6, ¶¶ 3 & 9.3(b)). The first mortgage defined “the Note” as “[t]he [first] Promissory Note of Mortgagor of even date herewith in the principal amount of EIGHT MILLION EIGHT HUNDRED TWENTY THOUSAND DOLLARS (U.S. $8,820,000) payable to the order of the Mortgagor and any and all extensions, renewals and modifications thereof and substitutions therefor, whether of the same amount or otherwise.” (Docket Entry # 25, Ex. 6, ¶ 1). It also required Realty to maintain a maximum loan to value ratio of no more than 60% at all times. (Docket Entry # 25, Ex. 6, ¶ 5.12.7). As also stated in the first mortgage, Anglo and Realty did not intend the first mortgage or the first promissory note to create any third party beneficiary rights in Noonan. 6. Remaining Terms of Promissory Notes and Second Mortgage The terms of the first promissory note set September 12, 2007, as the maturity date for the “entire Principal Sum,” a term defined in the first paragraph as the sum of $8,820,000. (Docket Entry # 25, Ex. 5). The terms of the second promissory note between Realty and Noonan set the same maturity date. With respect to the terms of the second promissory note, it contained a “Capital Event” covenant. A “Capital Event” within the meaning of the second promissory note included: any equity financing, debt financing or combination thereof by either [Realty] or Westwood which generates in excess of EIGHT MILLION EIGHT HUNDRED AND TWENTY THOUSAND and 00/100ths DOLLARS ($8,820,-000.00). The amount of any such Mandatory Prepayment shall equal the aggregate amount of capital generated by a Capital Event ... and shall be payable to [Noonan] concurrently with the closing of the relative Capital Event. (Docket Entry # 25, Ex. 7). The self executing covenant did not require Noonan to provide notice or a written demand upon Realty. Turning to the terms of the second mortgage, it included a provision prohibiting Realty from amending, modifying or extending any prior or senior mortgage without Noonan’s prior consent. The language states that, “[I]f this Mortgage is at any time subject or subordinate to another mortgage, the Mortgagor shall not modify, amend, or extend such prior mortgage ... without the consent of the Mortgagee.” (Docket Entry # 25, Ex. 8, ¶ 17). The second mortgage included an acknowledgment and agreement on the part of Noonan that his rights under the second mortgage “are subject to the rights of’ the mortgagee under the first mortgage. (Docket Entry # 25, Ex. 8). The second mortgage also prohibited Realty from allowing an encumbrance to attach to the property. (Docket Entry # 25, Ex. 8, ¶ 16(a)). If such an encumbrance attached, section 16(a) required Realty to discharge it within 80 days of the attachment. The second mortgage also made the entire debt due and payable on demand in the event any portion of a legal or beneficial interest “becomes vested in” anyone other than Realty. (Docket Entry # 25, Ex. 8, ¶ 15). Finally, the second mortgage required Realty to promptly notify Noonan of the existence of any existing or future security interest known by Realty. Under this section, Realty agreed “to notify the Mortgagee promptly of the existence of and the exact details of any other security interest in the Premises, now existing or hereafter arising .... ” (Docket Entry # 25, Ex. 8, ¶ 13). B. The August 2006 Loan In July 2006, one year after the first credit committee application to Anglo, Realty submitted another application for additional funding in the amount of $1,000,000. As reflected in a memorandum attached to the application, the original “$8.2 million is fully drawn.” (Docket Entry # 25, Ex. 17). At the time, Realty was negotiating with eight candidates as potential partners to develop the property and repay Anglo. Anglo’s credit committee described the loan as funding “operating shortfalls pending the sale of the property.” (Docket Entry # 25, Ex. 17). On August 2, 2006, Anglo and Realty executed a Note Modification Agreement and Amendment of Loan Documents. The amendment amended the first promissory note and increased the principal amount by the additional $1,000,000. Under the agreement, Realty warranted there was an absence of litigation that “would have a material effect” on Realty’s business. (Docket Entry # 25, Ex. 19, ¶ 5.3). It also warranted that, “There exists no Event of Default under any of the Loan Documents.” (Docket Entry #25, Ex. 19, ¶ 5.5). In an agreement also dated August 2, 2006, Realty and Anglo agreed to amend the definition of “Note” in the first mortgage to increase the $8,820,000 principal amount to $9,820,000. Captioned as Amendment of Security Instruments (“amendment of security instruments”), the agreement otherwise ratified and confirmed the terms of the first mortgage. The 60% loan to value ratio provision therefore remained intact. The July 18, 2006 application to the credit committee, however, reveals an increased loan to value ratio of 67%. The September 12, 2007 maturity date remained unchanged. Anglo and Realty did not procure Noonan’s written consent for the amendment prior to executing the aforementioned documents. Noonan attests that he did not consent to the 2006 amendment. He likewise avers that “none of the defendants” informed him of the amendment before its execution or “promptly thereafter.” (Docket Entry # 25, Ex. B). Indeed in a July 2006 email, Anglo’s outside counsel posited it may be necessary “to get a further subordination or consent from the second mortgagee to assure the priority of the additional advances under the first mortgage loan” but “[pjerhaps we can handle this simply by having the title company insure the priority of the additional advances.” (Docket Entry # 25, Ex. 18). In a September 8, 2006 document to generate interest in the property, Noonan refers to “a first mortgage on the property of approximately $10.0 million.” (Docket Entry # 18, Affidavit of Richard P. Dalton, Ex. B). Realty used the loan to pay real estate taxes in excess of $400,000, interest payments to Anglo and operating shortfalls. Notwithstanding the nonpayment of taxes and interest payments, Anglo did not notice or declare a default. C. Events Leading to August 2008 Amendment In February 2007, Jonathan L. Bashien, as assignee of Nixon Peabody, LLP, filed the complaint in Massachusetts Superior Court that initiated the Bashien case against various entities including West-wood, Realty and Wonderland Parking. Bashien did not file suit against the other defendants. The complaint led to issuance of the March 2007 preliminary injunction. Neither Realty nor Anglo informed Noonan about the injunction and the case settled in June 2009. Realty’s debt to Anglo continued to increase. As of February 1, 2007, Realty owed Anglo interest payments dating as far back as June 2006. Again, Anglo did not declare a default. By letter dated February 1, 2007, McCardle asked Sarkis to pay the outstanding interest arrears which totaled $407,158.32. (Docket Entry # 25, Ex. 25). On June 29, 2007, the Office of the Treasurer of the City of Revere (“Treasurer’s Office”) issued notices of taking to Realty for 2007 taxes not paid on the property within the statutory 14 day period after demand. The notices lead to the Treasurer’s Office issuing instruments of taking on the property on August 6, 2007. See Mass. Gen. L. ch. 60, ¶¶ 43, 53 & 54; (Docket Entry # 25, Ex. 31); (Docket Entry ## 27, 32 & 38, ¶¶ 48); (Docket Entry # 25, Ex. 38, “the land ... was taken on 8/6/07 for non-payment of taxes”). The city recorded the tax takings on September 19 and October 1, 2007. Dalton attests that these tax takings did not have an adverse effect on Realty’s ability to perform under the first mortgage. (Docket Entry # 37, ¶ 15). McCardle attests that in August 2007 Anglo and Realty “reached an agreement in principle to ... extend the loan to August 2008 and to increase the principal amount of the loan to $12,000,000.” (Docket Entry # 33, ¶ 7). McCardle also points to an April 2008 email to Dalton explaining a $27,500 fee as “due for the extension from last year.” (Docket Entry # 33, Ex. 2). Notably in light of the requirements of section 11.1, the parties did not enter into a written agreement until August 2008. Anglo did not declare a default or send Realty a notice of default on the September 12, 2007 maturity date. Anglo did not receive payment of the principal on the September 12, 2007 maturity date. Noonan did not receive payment of the principal and/or interest on the September 12, 2007 maturity date. The second promissory note dictates the application of an increased rate of 15% interest on the amounts due after maturity. A 12% rate is applied prior to maturity. The relevant provision for the 12% rate states that it accrues until the maturity date. Realty promised to pay Noonan the $3,929,000 principal: with interest thereon as provided herein, ..., together with interest on the unpaid principal balance thereof from time to time at a fixed rate per annum (the “Stated Rate”) of twelve percent (12%). Such interest shall be compounded quarterly and shall accrue until and be payable on the Maturity Date. (Docket Entry # 25, Ex. 7). Elsewhere in a separate paragraph, the second promissory note unequivocally reads that, “The Borrower agrees that ... all amounts due under this Note after maturity, and any amounts due hereunder if an Event of Default shall occur hereunder, shall bear interest at a rate of fifteen percent (15%).” (Docket Entry # 25, Ex. 7). In the fall of 2007, Realty and Anglo discussed and/or planned to procure the $12,000,000 increase to the principal while Sarkis and Dalton attempted to obtain Noonan’s consent to the increase. Indeed, an August 29, 2007 email from Anglo’s attorney indicated the need for Noonan “to consent and subordinate” the second mortgage to the increase. (Docket Entry # 25, Ex. 32A). McCardle attests that Anglo sought Noonan’s consent because the title insurance company refused to insure the priority of the increase absent Noonan’s consent. (Docket Entry # 33, ¶ 7). Noonan advised McCardle that he was hopeful they “might work something out” although they did not reach any agreement at that time. (Docket Entry # 52, ¶ 7). Anglo and/or Realty prepared an amended and restated ICA with the $12,000,000 figure for Noonan’s signature. As of the end of 2007, however, Anglo and Realty were still waiting to find out if Noonan would consent to the increase. Meanwhile, in October 2007, an independent auditor of the 2006 consolidated balance sheets of Greyhound Park and its wholly owned subsidiary, Realty, expressed “substantial doubt regarding the Company’s ability to continue as a going concern.” (Docket Entry # 25, Ex. 34). An independent auditor of the 2007 consolidated balance sheets of Greyhound Park and Realty similarly notes that: [OJver the past years, the Company has experienced several years of significant operating losses and has an accumulated deficit of approximately $19.7 million as of December 31, 2007. Additionally, the Commonwealth of Massachusetts passed legislation subsequent to year-end abolishing dog track racing effective January 1, 2010. These matters raised substantial doubt regarding the Company’s ability to continue as a going concern. (Docket Entry # 25, Ex. 68). Anglo and Realty did not amend the senior loan documents to increase the principal to $12,000,000 (Docket Entry ## 27, 32 & 38, ¶¶ 43) and did not obtain Noonan’s consent for the increase. Noonan did not consent due to his concern that the property’s value was not large enough to ensure repayment of the second promissory note. In the spring and summer of 2008, Realty was negotiating various transactions, including a payoff of the first loan, with a number of entities. In April 2008, McCardle urged Sarkis and. Dalton to pay the approximate $333,000 in interest arrears. In May 2008, one of Realty’s creditors issued a notice of default under a power purchase agreement it had with Realty due to Realty’s outstanding arrears of $78,251.96. Having made two payments in May, Realty owed outstanding interest of $131,234.18 as of June 2, 2008. As of August 5, 2008, Realty owed Anglo $375,385.63 in overdue interest under the first promissory note. (Docket Entry # 25, Ex. 41 & 44; Docket Entry # 37, Ex. G). D. August 2008 Amendments and Option On August 12, 2008, Westwood (including its wholly owned subsidiaries Realty, Greyhound Park and Wonderland Parking) and Coastal entered into an option agreement issuing to Coastal an option to purchase the property until December 1, 2009 (“the property option agreement”). Westwood, Realty and Coastal executed the agreement as did Sarkis who agreed to personally guaranty Westwood’s obligations to Coastal under the agreement. (Docket Entry #25, Ex. 46). Noonan learned about the agreement “after the fact” by reading the Boston Globe. (Docket Entry # 52, ¶ 8; Docket Entry # 25, Ex. B, ¶ 17). Dalton attests that West-wood excluded him from the negotiations leading to the property option agreement because “Noonan’s self-interest got in the way.” (Docket Entry # 18; Docket Entry # 37, ¶ 10). The property option agreement provides for Coastal to deposit $900,000 into an escrow account pending receipt inter alia of satisfactory evidence that Westwood obtained an extension of the first loan to December 1, 2009, which gave Coastal “a right (but not the obligation)” to purchase the first mortgage loan in the event Anglo desired to sell it. (Docket Entry # 25, Ex. 46, ¶ 3(A)). Of the $900,000 escrow fund, Coastal agreed to release $350,000 to Westwood upon receipt of the extension and proof of Sarkis’ net worth; to release $400,000 upon receipt of evidence of a payment plan with the city of Revere for outstanding taxes; and to release $150,000 upon execution of the agreement. (Docket Entry # 25, Ex. 46, ¶ 3(A)). In addition to the $900,000 payment, Coastal agreed to pay a monthly fee of $300,000 to Westwood up to an aggregate amount of $4,000,000. The agreement gave Coastal the option to purchase the property and/or a gaming license for a fee of $25,000,000 as well as certain annual and initial fees dependent upon enabling gaming legislation. The agreement also dictated fees payable by Coastal to Westwood as opposed to Realty. The agreement further sets out a “triggering event” that “automatically triggered” the option. The automatically triggered event was the existence of enabling gaming legislation during the term of the option. If triggered automatically or by Coastal, the option gives Coastal development rights and the right to acquire the property. (Docket Entry # 25, Ex. 46, ¶¶ 5 & 6). As also set out in the agreement, West-wood agreed to credit certain payments towards the $25,000,000 purchase price in the event Coastal exercised the option or upon automatic triggering of the option. Thus, the payments reduced the eventual purchase price while providing needed capital for outstanding taxes and working capital. Westwood also agreed to indemnify Coastal for any loss or expenses incurred in connection with any claim by Noonan with respect to his interest in the property. (Docket Entry # 25, Ex. 46, ¶ 10). On August 13, 2008, Coastal assigned the agreement to SSR Acquisitions LLC (“SSRA”), an entity the parties also refer to as Suffolk Downs. (Docket Entry # 27, ¶ 64; Docket Entry # 32, ¶ 64; Docket Entry # 38, ¶ 64). For a fee, the property option agreement allows SSRA to extend the option by up to three additional 12 month time periods. (Docket Entry # 25, Ex. 46, ¶ 5(C)). Dalton explains that Westwood reached the agreement with SSRA instead of competing against “Suffolk Downs’ owners” for an expected limited number of expanded gaming licenses. On August 14, 2008, Anglo and Realty entered into a document dated August 31, 2007, amending the maturity date of the first loan to August 31, 2008 (“the August 2008 amendment”). The August 2008 amendment extended the maturity date of the first loan to August 31, 2008. On August 20, 2008, Noonan requested information concerning the outstanding loan balance. An appraisal of the property as of August 27, 2008, placed its market value at $17,300,000. As of September 1, 2008, Realty owed Anglo in excess of $375,000 in interest on the first loan. By the fall of 2008, Reality was approximately two years and $800,000 behind in the payment of real estate taxes on the property to the city of Revere. In the fall of 2008 and in light of the municipal tax liens, the city of Revere commenced a foreclosure action and filed another lawsuit seeking recovery of unpaid taxes. The liens were released on November 24, 2008. (Docket Entry # # 27, 32 & 38, ¶¶ 47 & 48). In September 2008, Noonan wrote a series of three letters to Anglo, Sarkis and/or Realty objecting to the August 2006 amendment increasing the senior loan to $9,920,000 without his consent as well as the August 2008 amendment executed without his consent. In the September 5 and 16, 2008 letters to Sarkis and Realty, Noonan identified the $1,000,000 increase as a capital event under the second promissory note as well as a default. He also pointed to the failure to pay the second promissory note in full on the September 12, 2007 maturity date as a default. (Docket Entry # 25, Ex. 49, 51 & 52). In the September 2, 2008 letter Noonan also advised Anglo of his right to purchase the senior loan documents and requested a complete copy of the documents as well as an estoppel certificate pursuant to section 11 of the ICA. (Docket Entry # 25, Ex. 49). As previously noted, an estoppel certificate under section 11 allows Noonan to obtain the current outstanding principal balance of the senior indebtedness and the existence of any defaults under the senior and/or the subordinate loan documents. Section 13 of the ICA gives Noonan “the right” to purchase the senior loan Documents “[u]pon the occurrence of an Event of Default under the Senior Loan Documents.” (Docket Entry #25, Ex. 10, ¶ 13). In a September 3, 2008 reply letter to the foregoing request for an estoppel certificate and Noonan’s assertion in the same letter of “an ongoing Event of Default with respect to the [first] Promissory Note issued to Anglo,” McCardle pointed out that: As of this date, we have not declared the existence of an Event of Default under the Senior Loan, nor have we sent written notice of default to [Realty], If and when we do so, we will provide you with copies of all such notices of default as required under the Intercreditor Agreement. We reserve our right to waive defaults and extend the Senior Loan on terms satisfactory to us and/or to sell the Senior Loan to a third-party prior to the occurrence of an- Event of Default thereunder, subject to your rights under the Intercreditor Agreement. (Docket Entry #25, Ex. 50). The reply letter included the current outstanding balance of the senior loan ($10,303,720.71) and advised Noonan that the bank would consider any proposal to purchase the senior loan documents he submitted. It also asked Noonan to include a time frame for a purchase in any such proposal. In the reply letter, McCardle also confirmed various defaults with the following statement, “Regarding ongoing defaults with respect to the Senior Loan, we can confirm the following: (a) The Senior Loan matured on August 31, 2008; (b) interest is past due on the Senior Loan; and (c) real estate taxes are past due.” (Docket Entry # 25, Ex. 50). The record does not contain an express proposal from Noonan with a requested purchase price and a time frame. Viewing the record in favor of Noonan for purposes of the Wonderland defendants’ summary judgment motion, McCardle flatly informed Noonan on September 10, 2008, that Anglo would not sell him the first loan. (Docket Entry # 25, Ex. B, ¶ 21; Docket Entry # 52, ¶ 15). Aidan Hume (“Hume”), Anglo’s Executive Vice President, recalls a conversation with Noonan in which he asked Noonan to buy back the bank’s position and to which Noonan responded that “he might just do that.” (Docket Entry #34). McCardle and Hume uniformly attest that Noonan did not get back to Anglo with a proposal. (Docket Entry # 34; Docket Entry # 18, ¶ 8). Noonan continued to object to the ongoing reduction in the value of his loan resulting from the increase in principal to the first promissory note. By letter dated September 16, 2008, Noonan advised Realty that the “option agreement transactions” described to him during an August 27, 2008 lunch with Sarkis constitute defaults under the second mortgage and the second promissory note. (Docket Entry # 25, Ex. 52). A September 30, 2007 letter from Noonan to McCardle and another Anglo official identified the foregoing defaults as well as the option transaction with SSRA and another amendment to the loan documents detailed infra as defaults and as lacking Noonan’s consent. E. October 2008 Amendments and Options On October 28, 2008, Anglo and Realty extended the maturity date in the first promissory note to December 31, 2009, and increased the interest rate by one percent in a document captioned Second Note Modification Agreement and Amendment of Loan Documents (“October 2008 note amendment”). Under the agreement, Realty covenanted that neither it nor Sarkis had made any concessions for Noonan’s benefit under the ICA without obtaining a release from Noonan of any and all claims against Anglo. (Docket Entry # 25, Ex. 64, ¶ 4.2). On the same day, Anglo and Realty amended the first mortgage in a document entitled Second Amendment of Security Instruments (“October 2008 mortgage amendment”). The agreement increased the loan to value ratio of the first mortgage from 60 to 70 percent. It also added a new provision requiring prior notice to constitute an event of default under the senior loan documents for events that previously lacked a notice requirement. In addition to increasing collateral, the October 2008 mortgage amendment thus added the following section 8.18 to the first mortgage: In the case of a default under the Mortgage, the Note or any of the Other Documents which is susceptible of cure and for which no grace or notice period is specified elsewhere herein, except for a default described in Section 8.6 hereof, such default shall not constitute an Event of Default until such default shall have continued for more then ten (10) days after notice thereof from [Anglo] to [Realty] in accordance with section 11.1. (Docket Entry # 25, Ex. 65, ¶ 11). Also on October 28, 2008, Anglo and Sarkis entered into a Second Amendment and Ratification of Guaranty and Environmental Indemnity Agreement (“Sarkis loan purchase option”) that gave Sarkis the option to purchase the senior loan documents. Notably, the option gave Sarkis the right but not the obligation to purchase the senior loan documents “prior to the occurrence of an Event of Default” albeit “subject to the rights, if any, of Noonan.” (Docket Entry #25, Ex. 62, ¶¶ 1 & 4) (emphasis added). The relevant language appears in sections one and four: 1. At any time (a) prior to the occurrence of an Event of Default under the Loan Documents ... and (b) ending on the date the Loan matures, Charles F. Sarkis (“Optionee”) shall have the right, but not the obligation, to purchase the Loan Documents ... for a purchase price equal to the sum of the outstanding principal balance of the Loan, all accrued but unpaid interest, default interest ... 4. The assignment of the Loan Documents to Optionee ... shall be subject to the rights, if any, of Noonan under the Intercreditor Agreement .... (Docket Entry # 25, Ex. 62, ¶¶ 1 & 4). Again on the same date, Anglo and SSRA executed a Loan Purchase Option Agreement (“the SSRA loan purchase option”), acknowledged by Realty and Sarkis, that gave SSRA the option to purchase the senior loan documents at Anglo’s discretion. Similar to the Sarkis loan purchase option, the event triggering SSRA’s right to purchase included a decision by Anglo, in its discretion, to sell the foregoing “pri- or to the occurrence of an Event of Default . (Docket Entry # 25, Ex. 63, ¶ 1.1) (emphasis added). The applicable language in the SSRA loan purchase option appears as follows in section 1.1: Upon the occurrence of a Triggering Event (defined below), [SSRA] shall have the right, but not the obligation, to purchase from [Anglo], at the Purchase Price (defined below), all of [Anglo’s] right, title, and interest in and to the Loan, the Note and the Loan Documents (such right, the “Option Right”). A “Triggering Event” shall mean a decision by [Anglo], in its sole discretion, to sell all or any portion of [Anglo’s] right, title, and interest in and to the Note and the Loan Documents ... prior to the occurrence of an Event of Default (as defined in the Security Instrument), other than a sale pursuant to the Sarkis Loan Purchase Option. (Docket Entry # 25, Ex. 63, ¶ 1.1). Under the agreement, Anglo represented that it “is: (a) the holder of the Note, free and clear of any and all liens and encumbrances except for (i) the rights of Noonan under the Intercreditor Agreement ....” (Docket Entry # 25, Ex. 63, ¶ 2.1.1). In a whereas paragraph, the SSRA loan purchase option also referred to Noonan as “the holder of a subordinate mortgage on the Property [who] entered into” the ICA. (Docket Entry # 25, Ex. 63, p. W01991). In. short, Anglo gave both Sarkis and SSRA the option to purchase the senior loan documents prior to the occurrence of an event of default. Noonan’s right to purchase the senior loan documents under the ICA arose only after or upon the occurrence of an event of default whereas Sarkis and SSRA had the prior ability to exercise an option before an event of default. In yet another agreement on the same day, Westwood, Realty, SSRA, Sarkis and Coastal amended the property option agreement by releasing funds to the city of Revere to pay outstanding real estate taxes on the property (“the letter agreement”). Through CFJS, LLC (“CFJS”), a Delaware limited liability company of which Sarkis is the sole member and manager, the letter agreement required Sarkis to assign the Sarkis loan purchase option to CFJS. The letter agreement also “cause[d] CFJS to grant SSR an irrevocable power of attorney” giving SSRA all rights regarding the Sarkis loan purchase option. (Docket Entry # 25, Ex. 66, ¶ 6). Noonan attests that he did not consent to the foregoing amendments and option agreements including those that gave Sarkis and SSRA the foregoing options to purchase the senior loan documents. An October 1, 2008 email by an Anglo attorney recognizes the bank’s potential liability in the following manner: Not to be difficult, but I’m not sure we have the right to block Noonan’s purchase right once the default has become an Event of Default by then waiving it after the fact. I’m concerned that this will be viewed by Noonan as an attempt to deprive him of his prior rights under the Intercreditor Agreement and may subject the bank to claims of bad faith. However, I think we can waive defaults before they become Events of Default without running afoul of Noonan’s rights. (Docket Entry ##27, 32 & 38, ¶¶ 81; Docket Entry #25, Ex. 55). Realty has not made any prepayments to Noonan for a capital event under the second promissory note. By letter dated April 8, 2009, Noonan’s attorney formally declared a default in a letter to Realty. The letter identifies the prior notices of default in the aforementioned September 5 and 16, 2008 letters and a September 12, 2007 email to Dalton. On May 27, 2009, another Noonan attorney sent the same letter to Anglo accompanied by a cover letter. DISCUSSION Noonan seeks summary judgment on Count I (declaratory relief), Count IV (breach of the ICA against Anglo), Count V (breach of the implied covenant of good faith against Realty and Anglo), Count X (equitable subordination of advances against Anglo and Realty) and Count XII (impairment of Noonan’s security interest against Realty and Anglo). In addition to opposing this motion, the Wonderland defendants, SSR and Coastal globally move for summary judgment on all 17 counts in the complaint. (Docket Entry # 35). Anglo likewise moves to dismiss the entirety of the complaint. (Docket Entry # 55). Again, in lieu of addressing each cause of action, Anglo’s arguments attack Noonan’s construction of the loan documents by asserting that it had the right to amend the loan documents without Noonan’s consent, advance additional sums to Realty and refrain from declaring an event of default. Finally, Greyhound Park, Sarkis and Dalton move to dismiss the breach of fiduciary duty count (Count XI) and request entry of a separate final judgment. (Docket Entry # 63). All of the parties organize their arguments based upon the key events, to wit, the August 2006 increase in principal and amendments, the August 2008 transfer of the property option agreement to Coastal, Noonan’s September 2008 attempt to exercise his option to purchase the senior loan documents and the October 2008 amendments and the loan purchase options to Sarkis and SSRA. Adhering in part to this framework while also discussing the counts at issue, this court turns to a construction of the loan documents in the context of the August 2006 amendments. I. The August 2006 Increase in Principal Noonan submits that the $1,000,000 addition to the $8,820,000 principal does not take priority over the second loan. He seeks summary judgment under Count X for equitable subordination. He also argues that the additional amount was a “Capital Event” requiring a “Mandatory Prepayment” to Noonan under the terms of the second promissory note. According to Noonan, the amendment increasing the principal required his consent in accordance with section 17 of the second mortgage. In arguing the priority of the $1,000,000 loan, Anglo relies on the language of section 2(b) of the ICA allowing “any and all amendments” and “any and all advances heretofore made or hereafter to be made,” section 20 of the ICA allowing the ICA to trump conflicting provisions in the subordinate loan documents and section 9.3(b) of the first mortgage allowing Anglo to extend the time of payment or modify or waive the obligations. The Wonderland defendants, SSR and Coastal join in these arguments and maintain that Noonan consented to the loan as evidenced by the marketing material Noonan prepared in September 2006. The ICA dictates the application of Massachusetts law. Massachusetts law construes subordination agreements such as the ICA to give “practical benefits” to the debt given priority. Grise v. White, 355 Mass. 698, 247 N.E.2d 385, 389 (1969). Moreover, such practical benefits extend “far beyond a mere undertaking of the subordinator to stand aside and not to compete for a limited fund until the new priority claim has been satisfied.” Id.; accord Rosen v. A-H, Inc., 17 Mass.App.Ct. 126, 456 N.E.2d 477, 480 (1983) (“[s]ubordination agreements are ‘consistently’ construed to afford substantial ‘practical’ benefits to the debt or security interest given priority”). Ordinary rules of contract interpretation also apply to subordination agreements. Chesapeake Investment Services, Inc. v. Olive Group Corporation, 2003 WL 369682, *5 (Mass.Super. Jan. 30, 2003) (construing subordination agreement and recognizing that contract language is “construed in its usual and ordinary sense”). In Massachusetts, a contract is “construed to give it effect as a rational business instrument and in a manner which will carry out the intent of the parties.” Shane v. Winter Hill Federal Savings and Loan Association, 397 Mass. 479, 492 N.E.2d 92, 94 (1986) (construing letter agreement with first mortgagee allowing second mortgagee certain rights). “The words themselves remain the most important evidence of intention.” Id. at 95. If the words “are plain and free from ambiguity, they must be construed in accordance with their ordinary and usual sense.” World Species List-Natural Features Registry Institute v. Reading, 75 Mass.App.Ct. 302, 913 N.E.2d 925, 930 (2009); accord Chesapeake Investment Services, Inc. v. Olive Group Corporation, 2003 WL 369682, *5 (Mass.Super. Jan. 30, 2003). If unambiguous, the terms of a subordination agreement preclude parol evidence that undermines express terms. See Banknorth, N.A. v. LBM Financial, LLC, 2003 WL 22285428, *3 (Mass.Super. Aug. 29, 2003) (parol evidence rule forecloses reliance on “contents of any preliminary discussions” to undermine “express terms of the Subordination Agreement”). Determining the existence of an ambiguity involves “examin[ing] the language of the contract by itself, independent of extrinsic evidence concerning the drafting history or the intention of the parties.” Bank v. Thermo Elemental Inc., 451 Mass. 638, 888 N.E.2d 897, 907 (2008). An ambiguity may exist on the face of the contract “or as applied to the subject matter.” General Convention of New Jerusalem in the U.S. of America, Inc. v. MacKenzie, 449 Mass. 832, 874 N.E.2d 1084, 1087 (2007); see also Boston Edison Co. v. Federal Energy Regulatory Commission, 856 F.2d 361, 365 (1st Cir.1988) (“only when the written agreement, as applied to the subject matter, is in some material respect uncertain or equivocal in meaning that all the circumstances of the parties leading to its execution may be shown for the purpose of elucidating, but not of contradicting or changing its terms”). “Contract language is ambiguous ‘where the phraseology can support a reasonable difference of opinion as to the meaning of the words employed and the obligations undertaken.’ ” Bank v. Thermo Elemental Inc., 888 N.E.2d at 907; President and Fellows of Harvard College v. PECO Energy Co., 57 Mass.App.Ct. 888, 787 N.E.2d 595, 601 (2003) (same). Examining the words in the context of the entire writing is a search for the “manifested meaning, not a privately held belief or intent of one party” left uncommunicated “to other parties to the bargain.” Donoghue v. IBC USA (Publications), Inc., 70 F.3d 206, 212 (1st Cir.1995); accord General Convention of New Jerusalem in the U.S. of America, Inc. v. MacKenzie, 874 N.E.2d at 1087 (when words in “contract are clear, they must be construed in their usual and ordinary sense” thereby precluding admission of “parol evidenc