basically two issues in this case whether or not the got serious is the appellant's in this case had the right under the guarantee to modify the funding obligations in guarantee without notice so they're no longer subject to restrictive limitations which prevented the repayment of the loan and the other issue is whether or not the a pelleas in the guarantee had waived each and every contract defense that they had we stand here before you to state that the language in the in the contract or the guarantee is pretty clear language the provisions is clear and unambiguous and must be enforced as written section eight of the waivers specifically said stated that the appellants had the right to modify the terms of at any funding obligation without notice there was only one funding obligation and that funding obligation was defined section two of the guarantee and it specifically stated the terms of that funding obligation in section two states that subject to the limitations set forth in the guarantee pelleas have a duty to fund the subscription amount when do the term limit the term limitation is is in that funding obligation so therefore as limitations are  funding obligation the appellants had the right under the waiver provision to modify the funding obligation without notice so that those limitations restrictive limitations were no longer applicable the language is clear in and big us the most pure force ask you a question on pay paragraph ten of the guarantee agreement makes reference to the waiving party having to agree funding obligation couldn't be changed without the consent of the defendants if the defendants out of were even part and and they have to agree to a change in the funding obligation no the law is pretty clear on an issue between whether there is a general terms and specific terms and this case there's a general obligation to give notice to waive any of the other terms in this guarantee however there is a specific term the specific term regarding waivers set forth in paragraph two or paragraph eight in total waivers and specifically it says when it comes to the funding obligations and solely the funding obligations that you can modify this funding obligations without notice well no they know that i two separate terms the one that comes first is one that's unforced and this case it's also a specific term for we're talking about only the funding obligations so when you're talking about modifying the funding obligations you can do it without notice it's clear on their argument was that the terms of the the waiver they weren't talking about the funding obligations they were talking about an underlying debt and basically there's a provision in the law which says that when an obligation albacore want to make any notice to such modification that's no we have here there is no statement in the waiver provision that that refers to a modification of the underlying debt the underlying debt is called the subscription amount and that's owned by by the key to in a gaming authority catalan the underlying debt is not the funding obligation there separately defined by the guarantee so for the court to change the definition of the funding obligation to make it the underlying debt to say that you have to that were trying to change the underlying debts impermissible is incorrect and the court erred on that essential in this case the language is is clear and unambiguous there is there's language in the funding obligation which allows us to allows the appellant's refers to the limitations and they can be modified and that's exactly what happened here the language needs to be enforced as written in terms of the other issue regarding the the defenses in this case the waiver again stated that any and all  defenses that relate to any of any nature of the relate that arise under the principles of guaranteeing surety ship are with the district court basically said that the contract offenses are not included in the restatement of guarantee and surety ship they their contract offenses are thus not waived however print the principles of any guarantee and this is even in the restatement of guarantee they all arise out of contract therefore if they're going to be any any defenses they also would include contract offenses and we would state that those contract offenses that they've raised in this case have been waived and it was incorrect for the district court to state other lies they have not raised any case which states that the restatement controls in this case and further if if the waiver was to be limited to defenses set forth in the restatement it would have limited those defense it was specifically would no because it was modified to this particular agreement i mean this agreement talks about on the one hand it was standard language picked up and used in this agreement but you think the terms of disagreement  will let me say this that the this this statement itself may be standard but it isn't standard to the extent that it precludes any contract offenses it says of any nature under the principles of guarantee and sure ship a principle is defined as those things which arise out of something in the beginning the beginning of how you would say you look at any guarantee is based in contract so to say that contract offenses are not a political would go against even what the restatement says the restatement section five specifically says that you apply a law in equities and including the law of contract so how can you avoid contract offenses when the principles of guarantee which you think it is a waiver of all contract i think it is i think it is because when you say of any nature and i mean maybe there is other others that limit limit do with this but says of any nature arising out of the princip and any nature arising out of the prince or a guarantee is in itself a contract to say that you can apply of a principle of of what to guarantee is in this situation would be would be opposite of applying the principle of a guarantee so i believe that the principle contracts apply and again the section five of the of the a restatement itself specifically says that the law of  contracts applies so you can't just avoid defenses they have not cited one case which says when somebody wrote raise the defense of a contract offense that it was in a political and just to wrap up annoy you get two minutes but again this is brit pretty simple case i mean the language is here the language is here it's clear and and unmistakable the waiver says that you can make modifications to the funding obligation that's what happened here a modification occurred to the funding obligation one of the terms of that funding obligation included limitations those limitations were modified we were allowed to do that without notice and we would also contest the that the defenses including contract offenses were waived in this case and therefore we should be able to proceed forward with our declaratory action th we believe that there are four critical undisputed facts in this case the first is that the guarantee is a limited guarantee the tribe agreed to guarantee the underlying debt only under certain very limited circumstances and that limitation that substantial limitation is set forth in a specific provision in the guarantee three paragraph three or section three so that's the first second the guarantee was never triggered that fact is not in dispute the tribe never received distributions from the because of the limitations of the tribe only agreed to guarantee the underlying debt if the tribe had received a certain amount of distribution from the casino that exceeded the agreed upon floor it was a very limited is they get saros along with another or partial owner of the casino were bought out and they essentially subscribe their shares or they pay their shares were bought out to be paid over time workers bought a call the subscription in the house and the subscription agreement between monroe in kuwait and obligated to wait and to get a limited guarantee from the tribe very limited in the sense that it would only the tribe would only have a guarantee obligation if it received money from the casino that was in excess of an agreeable one for no dispute the reason we're here is because that limitation never occurred the guarantee was never trigger the whole reason we're here is because they want to remove the limitation provision the third undisputed critical factor on earth is that the guarantee contains a clear and unambiguous no modification provision and judge clay that's that provision in section ten no modification or change to the terms to any of the terms of the guarantee agreement may be made without my client the tribes written consent that's an paragraph ten of the guarantee in the fourth critical  agree with judge borman below that the two paragraphs are not inconsistent and i want i can and i can explain why i was going to mention the my fourth point but let me let me go ahead and address sure your question so  appellant's acknowledges it gets zero sick knowledge in a standard guarantee agreement if something is done to the underlying debt so if kuwait in monroe did something to change that underlying debt under standard guarantee law it rym it relieves my client guarantee obligations if they change the timing if they change the amount without my client's consent were off the hook that's standard guarantee law the all modern guarantees today have that standard language it's in paragraph eight that is the waiver provision that says essentially my client agrees that if something is done to the underlying dead were not released that's standard language it's lifted word for word from a form agreement for that type of a provision and so all that section two is saying is that section two says subject to the terms of the guarantee terms which cannot be modified without my client's consent subject to those terms my client agrees t guarantee the underlying debt disapprobation amount and the waiver provision just simply says standard language that if an underlying debt is modified without power we do not have to get notice of present it is entirely consistent with paragraph ten which says as to the terms of the guarantee not the underlying debt not the subscription amount not those agreements that the tribe is not party to ask for the terms of the guarantee you have to get our consent of your change what's the single most important provision in the guarantee agreement the limitation is a provision that is separate and apart from paragraph two the funding obligations and so your honor the first point is that the limitation provision paragraph three is a term of the guarantee agreement and it cannot be modified without my client's written consent that's me saying it and that's the appellant saying it in their brief before the district court they said plaintiffs also agree with defendants that they cannot modify any other provision in the guarantee including the limitation provision paragraph three without the tribes written consent so the key issue in the case then is have they attempted to modify a term of the guarantee agreement without the tribes written consent and we submit to your honor's the answer to that is unequivocally yes the focus needs to be on what is the purported modification what is the language by which they purport to modify the agreement it is in the letter that they sent and is in their briefs this is the operative language this is the modification l as of october seventeenth two thousand and twelve big guarantee is no longer subject to the section three here under in title limitation the guarantee is no longer subject to the section three here under in title limitation the purported modification essentially eliminates limitation provision paragraph three not the funding obligations all they did is they stuck that sentence in the funding obligation paragraph thinking that they can do that and remove another section of the guarantee are they permitted to do that on question billy no they purported to modify a term of the guarantee agreement by removing the limitation provision and they admit that they are not permitted to do that under the an ambiguous terms of the guaranty agreement that no modification provision they acknowledge we cannot change paragraph three that's exactly what they purport to do they say that guarantee is no longer subject to that provision you know assumes as though how these some of these but of the way in which some of these provisions relate to one of the it is not clear from the four corners of the agreement itself and mowers some of this has to be explained just as you've been doing this morning and sort of makes one wonder if there's a problem of ambiguity to if not ambiguity at least a situation that requires extensive evidence to sense i miss  because not necessarily clear from the face of the agreement this isn't isn't that a little bit on problem i respectfully submit it's not your honor because there's not a thing that i've said that has come from anything but the four corners of the green i haven't even gotten into the principles of the card the principles of contract construction i said simply look at the language paragraph two says subject to the limitations terms and conditions of the guarantee subject to everything that's in the guarantee paragraph ten says you can't change a term of the guarantee they want to change paragraph three by removing it we have the purported modification you just look at and read it and it says the guarantee is no longer subject to the limitation there's not a thing that i've said that comes from anything other than a clear reading of the contract and that's what judge bormann found and i think when you look at the principles of contract construction there is i think when you when you layer on judge clay your question with the principles of contract construction i do think that you can very easily get there at least i respectfully submit that you can't the first is that the courts are supposed to  contracts consistent with common sense and in a manner that avoids absurd results they should give construe it in a way they get of gives effect to each term or phrase wherever practical and the third and perhaps the most important is that a guarantee is to be strictly construed in favor of the guarantor so let me just i have about four minutes remaining let me kind of quickly talk about some of those principles as i said when you looking at common sense and you regarding the waiver provision paragraph eight the one that they want to rely upon and i've talked about the fact that that language is clear and consistent with general guarantee law that wants to protect them if something's an incorrect statement and that is they say section two states limitations close quote are a term of the funding obligation it doesn't it says that the limitation terms are part of the guarantee  in it that the term that they are as i've said trying to remove is the guarantee the limitation is not found in the funding obligations it is found in the guarantee now here's i think your hon r perhaps the most important one and that is giving it a construction that it that ovoid an absurd result if you allow them to do the purported modification that you they are trying to do it produces an absurd result paragraph two says under their purported modification the funding obligations are not subject to the limitations next paragraph the funding obligations are subject to the limitations it produces an absurd result in judge gorman frankly hit upon that and found that in my remaining time let me just talk about this is when you say a pair of two are not subject to the  finally your honor at this point about waiving defenses and following up on judge trances quick questions this is not the waiver provision is a customary waiver of defenses under principles of surety ship and guarantee which would otherwise operate to impaired emission diminish the tribes guarantee obligations this is not like some of the cases that they cited this is not a waiver of any and all defenses of the trot it's a very limited things like release extension or modification of the underlying debt that's a surety ship defense impairment of collateral that's a surety ship defense impairment of recourse that the surety ship defense there is no waiver of district of michigan two thousand and twelve decision in that case stands for the simple and unremarkable proposition that under michigan law promissory notes mortgages and guarantees are to be construed as ordinary contracts that is the case that they rely upon to suggest that the waiver provision of surety ship can guarantee defenses includes any and all defenses that are contract based i thank you for your time  i think the news and let me ask you first counselor how do you respond to the argument that the waiver in paragraph eight is clearly clearly addresses unconditionally and irrevocably way each and every defense and set off of any nature which under principles of guarantee or surety ship would operate i'm struggling with how you can take that very defined language and say did it was any contractual before and she may have to this entire agreement because it says each and every difference of any nature under the principles of guarantee ensures of when we say principles of guaranteed what is a principle of guarantee even the restatement under section five says that a principle of guarantee is that it's based upon contract therefore contract offenses are part of a principle of guarantee so you are connected or you take the position that under that line quid you might have a waiver for any written contractual error yes because if you hadn't signed the agreement or vai hadn't signed the agreement is there a way for there can be any contract offenses to this agreement because it says of any nature i mean it doesn't say specifically what's in the restatement it says of any nature under the principles you can't remove those words and just say under what the defense is that are listed under the why i'm raising every contract defense i would have a of what point do you hey i have by way of a meeting of the minds if the body of the document way any challenge under traditional contract law first of all there are i mean there are waivers that are drafted much broader than this that specifically state that you can waive any and all contract offenses but this this waiver itself is not just limited to god and i guess what i'm struggling with is if there are normal contract provisions in which people say our white contract defenses and they are then there is a standard guarantee and surety ship provision that is routinely incorporated into great agreements don't those two main something yes they do because we're not but not under your argument as i'm not waving every defense under the world i'm saying what arises under the principles of guaranteed and specifically under the principles of guarantee our contract defenses you can't have a guarantee without a contract but doesn't that smaller exception then gobble up the whole contract once the right man the standard contract offenses are come under the word principle of guarantee it's a principle it is of any nature they use the word any nature under the principles if you say that we're just it to what's under the they get a guarantee that the restatement then you have avoided the language of any nature and principles and i think you can't do that and thank you thank you  yeah yeah yeah