its fact that the relief prayed for is not merited, dismissal is both justified and appropriate."). We disagree.
UAL's claims against TAL hinge on two sources: (1) the written proposal and acceptance dated October 15, 1993 between TAL, Tajik Air, the Republic of Tajikistan and ALG, and (2) the Sublease between ALG Trust and Tajik Air. With regard to the Sublease, it is true that TAL is mentioned as a "Guarantor" in that document. However, TAL is not listed as a party to the agreement, and thus at first glance it would appear that the company cannot be bound by the terms of the Sublease.
UAL counters that the Sublease recognizes and incorporates the "Guarantees dated October 14, 1993 from [TAL and the Republic of Tajikistan] to the beneficiaries named therein as the same may be amended, modified or supplemented from time to time in accordance with the applicable provisions thereof." Sublease, Appendix, at 8. Therefore, UAL argues, TAL's liability stems from both the Sublease and the separate guarantee agreements executed in October 1993. Because the vitality of UAL's claims against TAL depend upon the guarantee agreements reached in October 1993, it is to those documents that we now turn.
The October 15, 1993 agreement specifically stated that TAL and the Republic of Tajikistan unconditionally guaranteed performance of the Sublease by Tajik Air and TAL. Indeed, TAL was listed as a lessee of the aircraft in that document. Most importantly, Michael Wynne-Parker signed the agreement as a representative of TAL, thereby indicating his company's acknowledgment and acceptance of it. UAL contends that because the Sublease Assignment gives it any rights ALG may have had against TAL, it is entitled to bring suit against TAL for failure to honor its guarantee of the Sublease. TAL's only reply is that the October 15, 1993 letter was actually a "proposal" and does not bind TAL to anything. However, the signature of TAL's employee Wynne-Parker belies its contention that the October 15 letter was merely a proposal; indeed, the subsequently entered Lease and Sublease specifically mentioning the guarantee by TAL suggests that this "proposal" was accepted by the parties. Moreover, UAL alleges that Wynne-Parker signed the Sublease Assignment on behalf of Tajik Air and TAL, further supporting its assertion that TAL was aware of and acquiesced in the agreement. Reading all of these facts with all reasonable inferences in favor of UAL, we cannot conclude that UAL will be unable to prove that it is entitled to relief. Accordingly, TAL's motion to dismiss Counts VI-X of UAL's amended complaint is denied.
Similarly, TAL's motion to dismiss ALG's cross-claims must also be rejected. Under the October 15, 1993 guarantee agreement, TAL specifically warranted that a "company Guarantee [has] been issued by . . . Tajik Air Limited. The above Guarantees have been accepted by [ALG]." Under ALG's reading of the facts, the Sublease recognized the existence of these guarantees and incorporated them into the document itself. ALG bases its cross-claims primarily on these documents, and we are unable to conclude that they cannot provide the basis for a cause of action. Therefore, TAL's motion to dismiss ALG's cross-claims must be denied.
B. Rule 12(b)(2)3
The party relying on an assertion of personal jurisdiction bears the burden of proving that such an assertion is proper, although at this stage only a prima facie showing need be made. Nelson by Carson v. Park Indus., Inc., 717 F.2d 1120, 1123 (7th Cir. 1983), cert. denied, 465 U.S. 1024 (1984). Personal jurisdiction in federal district court is generally measured according to both the state law as well as the constraints of the due process clause of the Fourteenth Amendment. See Daniel J. Hartwig Assoc., Inc. v. Kanner, 913 F.2d 1213, 1216 (7th Cir. 1990). However, where a contract underlying a litigation contains a forum selection clause, both parties will be deemed to have waived any objection to personal jurisdiction. See M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 9-12, 32 L. Ed. 2d 513, 92 S. Ct. 1907 (1972); Northwestern Nat. Ins. Co. v. Donovan, 916 F.2d 372, 375 (7th Cir. 1990) ("Since a defendant is deemed to waive (that is, he forfeits) objections to personal jurisdiction or venue simply by not making them in timely fashion, a potential defendant can waive such objections in advance of suit by signing a forum selection clause.").
UAL contends that TAL agreed to litigate any disputes arising out of the Sublease in the state or federal courts of Illinois. In support UAL cites (1) a portion of the Sublease which states that the law of Illinois will control any disputes arising out of the agreement, and (2) another portion of the Sublease which contains the following provision:
Each of the [Sublessee] and [Sublessor] (the same being made for the express benefit of [UAL]) (a) hereby irrevocably submits itself to the non-exclusive jurisdiction of the Circuit Court of the State of Illinois, Cook County and of the United States District Court for the Northern District of Illinois, for the purposes of any suit, action or other proceeding arising out of this Lease or the subject matter hereof or any of the transactions contemplated hereby . . . .