IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
September 21, 2005 Session
SHELBY ELECTRIC COMPANY, INC.
v.
PAUL FORBES AND JOSEPH STRAIN
An Appeal from the Circuit Court for Shelby County
No. CT-005619-03 Karen R. Williams, Judge
No. W2005-00263-COA-R3-CV - Filed December 29, 2005
This is an action to enforce a commercial guaranty. The defendants were both 25% shareholders in
the plaintiff corporation. They each signed a guaranty on a $70,000 line of credit issued to the
corporation. Subsequently, two other shareholders of the corporation drew down $50,000 from the
line of credit without notifying the defendant guarantors or the corporation’s board of directors. Two
days later, the guarantors resigned from the corporation. Within weeks, the two other shareholders
who drew the money from the line of credit caused the corporation to default on its obligation.
These two shareholders then purchased the corporation’s debt from the bank in the name of the
plaintiff corporation and demanded payment from the guarantors under their guaranties. The
guarantors refused to make the requested payments. The plaintiff corporation then sued the
guarantors pursuant to the guaranties. The guarantors filed an answer asserting the affirmative
defenses of fraud and fraud in the inducement of the guaranties. The plaintiff corporation filed a
motion for summary judgment, citing the broad “waiver of defenses” provision in the guaranties.
The trial court granted summary judgment to the plaintiff corporation, concluding that the defenses
asserted by the guarantors were waived under the general waiver-of-defenses provision. From that
order, the guarantors now appeal. We reverse, concluding that the defenses of fraud and fraud in the
inducement were not waived in the general waiver-of-defenses provisions in the guaranties at issue.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is
Reversed and Remanded
HOLLY M. KIRBY , J., delivered the opinion of the Court, in which W. FRANK CRAWFORD , P.J., W.S.,
and ALAN E. HIGHERS, J., joined.
Sharon L. Petty, Memphis, Tennessee, for the appellants, Paul Forbes and Joseph D. Strain.
Henry C. Shelton, III, Memphis, Tennessee, for the appellee, Shelby Electric Company, Inc.
OPINION
Integrated Electronic Systems, Inc. (“IES”), was in the business of providing the sales and
service of electronic equipment to the medical community. Defendants/Appellants Paul Forbes
(“Forbes”) and Joseph D. Strain (“Strain”) (collectively, “defendants”), both engineers, each owned
twenty-five percent (25%) of the stock in IES. The other fifty percent (50%) of IES stock was owned
by Shelco of Tennessee (“Shelco”), which is the parent company of Plaintiff/Appellee Shelby
Electric Company, Inc. (“Shelby Electric”). Al Quarin (“Quarin”) is the President of Shelco and was
also the Secretary and a member of the board of directors at IES. Bob Hunolt (“Hunolt”) is the Vice-
President of Shelco and was also the President and Chairman of the Board at IES.
On March 21, 2001, in the ordinary course of business, IES obtained a line of credit with
First Tennessee Bank (“the Bank”) in the amount of $50,000, which was later increased to $70,000.
At the time IES obtained the line of credit, the six members of the board of directors signed
guaranties on the IES line of credit. The six guarantors were the defendants, Quarin, Hunolt, and
board members Pat Walkup and Ken Stevens. The guaranties signed by the defendants are the
subject of the instant lawsuit.
In August 2003, Hunolt learned that the defendants intended to resign from IES. Shortly
thereafter, Hunolt borrowed $50,000 from IES’s line of credit, purportedly on behalf of IES, without
the knowledge of the defendants and without consulting with the board of IES.1 Approximately two
days later, on August 22, 2003,the defendants resigned from IES, as expected. On August 27, 2003,
Shelby Electric purchased the IES note from the Bank. Thereafter, IES, under the control of Quarin
and Hunolt, defaulted on the note, even though IES allegedly had funds to meet its monthly
obligation on the note. By letters dated August 30 and September 2, 2003, Shelby Electric notified
the defendants of IES’s default and demanded payment from them of the $70,000 debt, plus interest
and attorney’s fees, under the guaranties. No demand was made to the other guarantors on the note.
The defendants did not make the payments demanded by Shelby Electric.
On October 6, 2003, Shelby Electric, as the holder of the note, filed the instant lawsuit
against the defendants for payment of the IES debt pursuant to the guaranties. The defendants filed
an answer, asserting as an affirmative defense that Quarin and Hunolt made misrepresentations to
the defendants in order to induce them to execute the personal guaranties at issue. They alleged that
Quarin and Hunolt told them that they could not be shareholders in IES unless they signed the
guaranties, and that the Bank required them to sign the guaranties in order for IES to obtain the line
of credit. The answer further asserted as an affirmative defense that Quarin and Hunolt engaged in
fraud by executing the notes to the Bank as officers of IES, then drawing $50,000 on the IES line of
credit without notice to the defendants and converting the $50,000 to their own use and benefit by
paying it to Shelco and Shelby Electric in breach of their fiduciary duties to the defendants and IES.
1
Apparently, IES had already borrowed $20,000 on the line of credit, so $50,000 was the remaining amount
available to be borrowed.
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On March 1, 2004, Shelby Electric filed a motion for summary judgment, supported by the
affidavit of Quarin and a statement of undisputed facts. It argued that the defendants were liable
under the guaranty, and that they had waived all defenses to the complaint.
On March 5, 2004, the defendants filed a motion to consolidate this case with another lawsuit
filed against them on September 23, 2003, in Shelby County Chancery Court, styled IES v. Forbes
and Strain. The defendants alleged that the two lawsuits involve common questions of law or fact,
and that consolidation was required to serve the interest of judicial economy and to avoid
unnecessary delay or duplication of effort. Shelby Electric objected to the consolidation of the two
lawsuits.
On March 19, 2004, the defendants filed a motion for leave to amend their answer, seeking
to plead additional defenses and to file a third-party complaint against Hunolt, Quarin, and the
remaining members of the board of directors of IES. On March 26, 2004, the defendants filed a
response to Shelby Electric’s motion for summary judgment and to Shelby Electric’s statement of
undisputed facts. They argued that the defenses of fraud and fraud in the inducement were not
waived by the language in the guaranties, and that these defenses raised genuine issues of material
fact.
On April 7, 2004, the trial court conducted a hearing on Shelby Electric’s motion for
summary judgment and the defendants’ motion to consolidate. The hearing consisted of argument
by counsel for each of the parties. On April 26, 2004, the trial court entered an order granting Shelby
Electric’s motion for summary judgment and denying the defendants’ motion to consolidate. The
trial court determined that “the Commercial Guaranty waived all defenses the Defendants sought to
plead, and . . . the Commercial Guaranty was properly executed and is controlling.” The trial court
then concluded that “the remaining issues between the parties may be litigated in the pending
Chancery suit . . . .” The trial court determined that a judgment should be entered in favor of Shelby
Electric against the defendants in the amount of $70,000, plus interest and attorney’s fees. In that
order, the trial court did not specifically refer to the defendants’ motion to amend their answer.
On May 26, 2004, the defendants filed a motion to alter or amend the April 26, 2004 order.
They argued that, in reaching the decision to grant summary judgment in favor of Shelby Electric,
the trial court failed to properly consider the defense of fraud. On June 11, 2004, the trial court
conducted a hearing on the defendants’ motion to alter or amend. On June 24, 2004, the trial court
entered an order denying the motion. From that order, the defendants now appeal.2
On appeal, the defendants argue that the trial court erred in granting summary judgment to
Shelby Electric and in finding that the defenses of fraud and fraudulent inducement were waived
pursuant to the language in the guaranties. In addition, the defendants argue that the trial court erred
in failing to permit them to amend their answer to raise additional affirmative defenses and to file
2
Sharon L. Petty, counsel for defendants on appeal, did not represent the defendants in the trial court
proceedings.
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a third-party complaint against Quarin and Hunolt, as well as other directors of IES. In response,
Shelby Electric argues that the trial court correctly held that the defendants had waived the defenses
that they now seek to plead, asserting that “fraud is just another defense.” Shelby Electric also
claims that the trial court properly denied the defendants’ motion to amend their answer, because the
grant of summary judgment in favor of Shelby Electric mooted the issue of the amendment of the
defendants’ answer.
We review the trial court’s grant of summary judgment de novo with no presumption of
correctness. Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997). Summary judgment is
appropriate when “there is no genuine issue as to any material fact” and “the moving party is entitled
to a judgment as a matter of law.” Tenn. R. Civ. P. 56.04. The evidence must be viewed “in the light
most favorable to the nonmoving party,” and all reasonable inferences must be drawn in the
nonmoving party’s favor. Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000). We
review the trial court’s denial of a motion to alter or amend for an abuse of discretion. Chambliss
v. Stohler, 124 S.W.3d 116, 120 (Tenn. Ct. App. 2003).
We first address whether the defendants, under the waiver-of-defenses provision in the
guaranties, waived the defenses of fraud or fraud in the inducement. The guaranties, identical for
both defendants, read in pertinent part:
GUARANTOR’S WAIVERS. Except as prohibited by applicable law, Guarantor
waives any right to require Lender (A) to continue lending money or to extend other
credit to Borrower; (B) to make any presentment, protest, demand, or notice of any
kind, including notice of any nonpayment of the Indebtedness or of any nonpayment
related to any collateral, or notice of any action or nonaction on the part of Borrower,
Lender, any surety, endorser, or other guarantor in connection with the Indebtedness
or in connection with the creation of new or additional loans or obligations; (C) to
resort for payment or to proceed directly or at once against any person, including
Borrower or any other guarantor; (D) to proceed directly against or exhaust any
collateral held by Lender from Borrower, any other guarantor, or any other person;
(E) to give notice of the terms, time, and place of any public or private sale of
personal property security held by Lender from Borrower or to comply with any other
applicable provisions of the Uniform Commercial Code; (F) to pursue any other
remedy within Lender’s power; or (G) to commit any act or omission of any kind, or
at any time, with respect to any matter whatsoever.
Guarantor also waives any and all rights or defenses arising by reason of (A) any
“one action” or “anti-deficiency” law or any other law which may prevent Lender
from bringing any action, including a claim for deficiency, against Guarantor, before
or after Lender’s commencement or completion of any foreclosure action, either
judicially or by exercise of a power of sale; (B) any election of remedies by Lender
which destroys or otherwise adversely affects Guarantor’s subrogation rights or
Guarantor’s rights to proceed against Borrower for reimbursement, including without
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limitation, any loss of rights Guarantor may suffer by reason of any law limiting,
qualifying, or discharging the Indebtedness; (C) any disability or other defense of
Borrower, of any other guarantor, or of any other person, or by reason of the
cessation of Borrower’s liability from any cause whatsoever, other than payment in
full in legal tender, of the Indebtedness; (D) any right to claim discharge of the
Indebtedness on the basis of unjustified impairment of any collateral for the
Indebtedness; (E) any statute of limitations, if at any time any action or suit brought
by Lender against Guarantor is commenced, there is outstanding Indebtedness of
Borrower to Lender which is not barred by any applicable statute of limitations; or
(F) any defenses given to guarantors at law or in equity other than actual payment
and performance of the Indebtedness. If payment is made by Borrower, whether
voluntarily or otherwise, or by any third party, on the Indebtedness and thereafter
Lender is forced to remit the amount of that payment to Borrower’s trustee in
bankruptcy or to any similar person under any federal or state bankruptcy law or law
for the relief of debtors, the indebtedness shall be considered unpaid for the purpose
of the enforcement of this Guaranty. Guarantor further waives and agrees not to
assert or claim at any time any deductions to the amount guaranteed under this
Guaranty for any claim of setoff, counterclaim, counter demand, recoupment or
similar right, whether such claim, demand or right may be asserted by the Borrower,
the Guarantor, or both.
GUARANTOR’S UNDERSTANDING WITH RESPECT TO WAIVERS.
Guarantor warrants and agrees that each of the waivers set forth above is made with
Guarantor’s full knowledge of its significance and consequences and that, under the
circumstances, the waivers are reasonable and not contrary to public policy or law.
If any such waiver is determined to be contrary to any applicable law or public
policy, such waiver shall be effective only to the extent permitted by law or public
policy.
(Emphasis added) (“Guaranty”). Thus, a myriad of defenses are explicitly waived under the
language in the Guaranty. Other unnamed defenses are waived in the “catch-all” provision, which
applies to “any defenses given to guarantors at law or equity other than actual payment and
performance of the Indebtedness.” Neither fraud nor fraud in the inducement are specifically
mentioned in the waiver-of-defenses provision of the guaranties. Therefore, the question becomes
whether fraud and fraud in the inducement are defenses that are waived under the “catch-all”
provision referring to “any defenses . . . at law or equity.”
On appeal, the defendants acknowledge the well-established law in Tennessee that “a
guarantor in a commercial transaction shall be held to the full extent of his engagements and . . . the
words of a guaranty are to be taken as strongly against the guarantor as the sense will admit.”
Farmers-Peoples Bank v. Clemmer, 519 S.W.2d 801, 804-05 (Tenn. 1975). Both parties agree that
the issue of whether the defenses of fraud or fraud in the inducement can be deemed waived under
such a “catch-all” waiver of defenses provision is an issue of first impression in Tennessee. The
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defendants argue that public policy strongly dictates that fraud and fraudulent inducement are not
waivable defenses, particularly when neither fraud nor fraudulent inducement are mentioned in the
waiver-of-defenses clause.
In support of their argument, the defendants rely on New York caselaw on the issue. In
Citibank, N.A. v. Plapinger, 485 N.E.2d 974 (N.Y. 1985), the officers and board members of a
corporation signed guaranties on a debt of the corporation. The guaranty in that case was quite
broad; it stated that its “absolute and unconditional” nature was “irrespective of (i) any lack of
validity . . . of the . . . Restated Loan Agreement . . . or any other agreement or instrument relating
thereto,” or “(vii) any other circumstance which might otherwise constitute a defense to the
guarantee.” When the corporation filed for bankruptcy, the lender sued the defendants on their
guaranties. The defendants asserted the defenses of fraud and fraud in the inducement. The trial
court granted a judgment in favor of the lender, holding that, under the language of the guaranty, the
defendants waived their right to assert those defenses. Plapinger, 485 N.E.2d at 975. The defendant
guarantors appealed. The Court of Appeals of New York affirmed the trial court’s decision against
the guarantors, determining that “the language of the disclaimer in the guarantee is sufficiently
specific to foreclose as a matter of law the defenses . . . based on fraud . . . .” Id. The Plapinger
court emphasized that its decision was based on the fact that the provisions in the guaranty were not
generalized boilerplate waiver provisions. Rather, the language resulted from “extended negotiations
between sophisticated business people” who had knowingly “denominated their obligation
unconditional.” Id. at 977.
Later cases refined this reasoning and narrowed the application of Plapinger to situations in
which the language in the guaranty was “sufficiently specific to bar a defense of fraudulent
inducement.” Mfrs. Hanover Trust v. Yanakas, 7 F.3d 310, 316 (2d Cir. 1993). In Yanakas,
decided under New York law, the guaranty at issue stated that it was “absolute and unconditional,”
and that it constituted a guaranty of payment “regardless of the validity, enforceability of any of said
Obligations or purported Obligations . . . .” Yanakas, 7 F.3d at 313. The Second Circuit recognized
the rule that “fraud vitiates every transaction,” and that, generally, a party may avoid liability under
a contract if he was fraudulently induced into executing it. Id. at 315. However, the court
determined that even the defense of fraudulent inducement will be barred if there is specific language
in the contract disclaiming the existence of or reliance upon specified representations. Id. (citing
Danann Realty Corp. v. Harris, 157 N.E.2d 597, 599 (N.Y. 1959)). The Yanakas court discussed
Plapinger and found that its holding did not alter this basic principle, because the defendants in
Plapinger had negotiated a contract whereby they expressly waived any challenge to the validity of
the agreement itself. The Yanakas concluded that “the mere general recitation that a guarantee is
‘absolute and unconditional’ is insufficient under Plapinger to bar a defense of fraudulent
inducement, and that the touchstone is specificity.” Id. at 316 (emphasis added). In the absence of
such specificity, the Yanakas court held, dismissal of the fraud claim would be inappropriate.
Because the guaranty at issue was in a preprinted form and used routinely, and because the guaranty
did not contain “disclaimers of the representations that formed the basis of [the] claim of fraudulent
inducement,” the Yanakas court held that the defendants were permitted to plead the defense of
fraudulent inducement.
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Defendants Forbes and Strain urge this Court to apply New York law to the instant case.
Under New York law, the defendants argue, they would be permitted to assert the defenses of fraud
and fraudulent inducement because the guaranty at issue does not contain specific language waiving
a defense that pertains to fraud or the validity of the guaranty. They note that the waiver in this case
is a general “catch-all” waiver, and that the guaranty itself states that it “shall be effective only to the
extent permitted by law or public policy.” The defendants argue that both Tennessee and New York
recognize the general principle that “fraud vitiates all that it touches.” Pursuant to this principle, they
maintain, they should be permitted their day in court to prove that their debt is the result of the fraud
perpetrated upon them by Quarin and Hunolt.
In response, Shelby Electric argues that the defendants’ asserted defense of fraud and fraud
in the inducement were waived under the broad catch-all waiver in the guaranty, because the waiver
explicitly applies to “any defenses” other than actual payment of the indebtedness. Permitting
waiver of those defenses does not offend public policy, Shelby Electric argues, because the language
is clear and unambiguous, and the parties should be held to the terms of the guaranty. Shelby
Electric emphasizes that, under settled Tennessee law, a guaranty is to be construed “as strongly
against the guarantor as the sense will admit.” See Clemmer, 519 S.W.2d at 805. It notes that this
has been the law in Tennessee since the 1853 decision of Bright v. McKnight, 33 Tenn. (1 Sneed)
158 (Tenn. 1853), in which the Supreme Court stated that “[n]o injury can result from this doctrine,
as it is in the power of guarantors to make their obligation dependent on notice, demand or any other
condition they see proper, for their own protection and safety.” Bright, 33 Tenn. (1 Sneed) at 168.
Shelby Electric distinguishes the line of cases on which the defendants rely, arguing that New York’s
approach to guaranty law is more liberal than Tennessee’s approach. In contrast to Tennessee,
Shelby Electric claims, under New York jurisprudence, strict construction of a guarantee occurs only
“after the meaning of the contract of guarantee has been determined according to the ordinary
principles of contract construction.” Compagnie Financiere de CIC et de L’Union Europeenne
v. Merrill Lynch, 188 F.3d 31, 34 (2d Cir. 1999) (quotation omitted).
As the parties acknowledge, the issue of whether a defense of fraud or fraudulent inducement
can be waived under the general waiver of “any defenses” in a guaranty is an issue of first
impression in Tennessee. As noted above, New York will generally recognize the waiver of a
defense of fraud or fraudulent inducement only if the language of the waiver is sufficiently specific
to encompass the fraud defense. See Yanakas, 7 F.3d at 317-18; see also JP Morgan Chase Bank
v. Liberty Mut. Ins. Co., 189 F. Supp.2d 24, 28 (S.D.N.Y. 2002) (holding that a broad disclaimer
does not preclude the defenses of fraudulent inducement or fraudulent concealment); PGA Mktg.,
Ltd. v. Windsor Plumbing Supply, Inc., 124 A.D.2d 576, (N.Y. 1986) (stating that a waiver “of
the right to assert any defense, offset or counterclaim” would not preclude a defense of fraud in the
inducement). Courts in other states faced with the interpretation of a waiver-of-defenses provision
have also scrutinized the specificity of the waiver provision in the contract to determine whether the
defense of fraud or fraudulent inducement had been expressly waived. See, e.g., MBIA Ins. Corp.
v. Royal Indem. Co., 426 F.3d 204, 214-18 (3d Cir. 2005) (determining, under Delaware law, that
the defendants were precluded from asserting a fraudulent inducement defense when the defense of
fraud was specifically and unambiguously waived in the insurance policy at issue); Dakota Partners,
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L.L.P. v. Glopak, Inc., 634 N.W.2d 520, 524 (N.D. 2001) (concluding that “an analysis of the
language of the waiver is necessary” to determine whether the defense of fraud has been specifically
waived); Sec. Holding v. Johnson, 231 N.W. 536, 538 (S.D. 1930) (determining that a defendant
is not automatically estopped from raising a fraudulent inducement defense, even if the note
contained a waiver-of-defenses clause).
In this case, the language in the guaranty states that the defendants agree to waive “any
defenses given to guarantors at law or in equity other than actual payment and performance of the
Indebtedness.” This is a basic “catch-all” waiver provision that appears to be boilerplate language
in guaranties used routinely by the Bank.3 In the litany of defenses specifically waived, there is no
mention of a waiver of the defenses of fraud or fraudulent inducement.
Furthermore, the guaranty in this case contains additional language that, “[i]f any such waiver
is determined to be contrary to any applicable law or public policy, such waiver shall be effective
only to the extent permitted by law or public policy.” It is well settled in Tennessee that the courts
of our State will not be utilized to enforce a contract which is the product of fraud; indeed, fraud
vitiates all that it touches. The Tennessee Supreme Court has underscored the effect of fraud on
transactions:
Fraud vitiates and avoids all human transactions, from the solemn judgment of a
court to a private contract. It is as odious and as fatal in a court of law as in a court
of equity. It is a thing indefinable by any fixed and arbitrary definition. In its
multiform phases and subtle shapes, it baffles definition. It is said, indeed, that it is
part of the equity doctrine of fraud not to define it, lest the craft of men should find
ways of committing fraud which might evade such a definition. In its most general
sense, it embraces all acts, omissions, or concealments which involve a breach of
legal and equitable duty, trust or confidence justly reposed, and are injurious to
another, or by which an undue and unconscientious advantage is taken of another.
A judicial proceeding in rem, while generally binding upon all persons, is no more
free from the fatal taint of fraud than a proceeding in personam, or an individual
contract. When once shown to exist, it poisons alike the contract of the citizen, the
treaty of the diplomat, and the solemn judgment of the court.
New York Life Ins. Co. v. Nashville Trust Co., 292 S.W.2d 749, 754 (Tenn. 1956) (citations and
quotations omitted); see also Brandon v. Wright, 838 S.W.2d 532, 534 (Tenn. Ct. App. 1992);
Winstead v. First Tenn. Bank N.A., 709 S.W.2d 627, 631 (Tenn. Ct. App. 1986); Hunt v. Walker,
483 S.W.2d 732, 735 (Tenn. Ct. App. 1971). Because a guaranty is to be construed strongly against
the guarantors, it is important that such a solemn obligation not be obtained by the use of fraud.
Under these circumstances, we conclude that the defendants should have been permitted to assert
3
There is no evidence that the individual provisions in this guaranty were negotiated by the defendants or other
guarantors. According to the affidavits in the record, the Bank submitted the affidavits to the guarantors who, in turn,
signed the documents they were given.
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the defenses of fraud and fraudulent inducement in this case, particularly in the absence of a specific
waiver of those defenses.4
For the same reasons, we conclude that the trial court erred in failing to grant the defendants’
motion to alter or amend its decision to grant summary judgment in favor of Shelby Electric. Rather,
the trial court should have permitted the defendants to assert the defenses of fraud and fraudulent
inducement and should have considered the defendants’ motion to amend their answer. All other
issues raised in this appeal are pretermitted.
The decision of the trial court is reversed and the cause is remanded to the trial court for
further proceedings not inconsistent with this opinion. Costs on appeal are to be taxed to Appellee
Shelby Electric Company, Inc., for which execution may issue, if necessary.
___________________________________
HOLLY M. KIRBY, JUDGE
4
Because the waiver-of-defenses provision in this case does not contain specific language waiving the defenses
of fraud or fraudulent inducement, we need not determine whether a specific waiver of those defenses would be
enforceable under Tennessee law. See, e.g., Douglas v. Tonigan, 830 F. Supp. 457, 462 (N.D. Ill. 1993) (declining to
enforce, under Illinois law, the express waiver of a defense of fraud in a guaranty, even though Illinois courts generally
enforce unambiguous waivers of defenses in guaranties).
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