EXHIBIT 10.14


 


GUARANTY


 


GUARANTY
(this “Guaranty”),
dated as of October 31, 2007, is made by CONTAINER LEASING INTERNATIONAL,
LLC (d/b/a Carlisle Leasing International, LLC), a limited liability company
organized under the laws of the State of New York (together with its successors
and assigns, the “Guarantor”).


 


RECITALS:


WHEREAS,
pursuant to the Credit Agreement, dated as of October 31, 2007 (as
amended, modified or supplemented from time to time in accordance with its
terms, the “Credit
Agreement”), among CLI Funding III LLC (the “Borrower”),
ING Bank N.V., in its capacity as Administrative Agent and collateral agent
(the “Administrative
Agent” or the “Collateral Agent”; each of the Lenders, the
Administrative Agent and the Collateral Agent, a “Beneficiary”
and collectively, the “Beneficiaries”)
and the lenders from time to time party thereto (each, a “Lender”  and
collectively, the “Lenders”)
have committed to extend the Loans in an aggregate principal amount of up to
their respective Commitments;


 


WHEREAS,
in order to induce the Administrative Agent, the Collateral Agent and the
Lenders to enter into the Credit Agreement, the Guarantor will execute and
deliver this Guaranty pursuant to which such Guarantor will guaranty, among
other things, payment of all of the Obligations, as hereinafter defined; and


 


WHEREAS,
the Borrower is a Subsidiary of the Guarantor, the Guarantor will receive
substantial direct or indirect benefit from the transaction described in the
Credit Agreement and therefore it is in the best interest of the Guarantor to
enter into this Guaranty.


 


AGREEMENT:


 


Accordingly,
the Guarantor agrees for the benefit of the Beneficiaries and each of its
permitted assigns or transferees, as follows:


 


1. Certain Terms.


 


(a) Capitalized
terms used herein without definition have the respective meanings set forth in
the Credit Agreement.


 


(b) “Obligations” means
any and all present and future payment obligations and liabilities of the
Borrower of every type and description to the Beneficiaries, or any of their
successors or permitted assigns under the Credit Agreement and the other Loan
Documents, whether for principal, interest, fees, expenses or other amounts
(including attorneys’ fees and expenses), in each case whether due or not due,
direct or indirect, joint and/or several, absolute or contingent, voluntary or
involuntary, liquidated or unliquidated, determined or undetermined, now or
hereafter existing, renewed or restructured, whether or not from time to time
decreased or extinguished and later increased, created or incurred, whether or
not arising after the commencement of a proceeding


 

















 


under the Federal
Bankruptcy Code (including post-petition interest) and whether or not allowed
or allowable as a claim in any such proceeding, and whether or not recovery of
any such obligation or liability may be barred by a statute of limitations or
such obligation or liability may otherwise be unenforceable. All Obligations
shall be conclusively presumed to have been created in reliance on this
Guaranty.


 


2.
Guaranty. The Guarantor
hereby absolutely, unconditionally and irrevocably:


 


(a) guaranties
to each of the Beneficiaries the full and punctual payment when due of all
Obligations, whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise, and such guaranty is not conditional or
contingent upon pursuit by any Beneficiary of any prior action or proceeding
for collection, or for any other remedies the Beneficiaries may have, against
any Borrower or any other Person. All such amounts and all other amounts
payable hereunder shall be payable on demand; and


 


(b) undertakes
and agrees to each of the Beneficiaries that, in the event that the Borrower
shall fail in any manner whatsoever to perform or observe any of the terms,
covenants, conditions, agreements and undertakings to be performed or observed
by the Borrower under the Credit Agreement or any other Loan Document to which
it is a party in accordance with the terms thereof, including, without
limitation, all indemnity obligations of the Borrower thereunder, when the same
shall be required to be performed or observed under the Credit Agreement, then
the Guarantor shall guarantee and ensure that the Borrower duly and punctually
performs and observes (or, alternatively, the Guarantor will perform on behalf
of the Borrower, as the case may be) each such obligation.


 


3. Expenses. The Guarantor agrees to pay to the Beneficiaries any
and all reasonable and documented costs and expenses, (including reasonable and
documented attorneys’ fees and expenses), that the Beneficiaries may incur in
connection with (a) the collection of all sums guarantied hereunder or (b) the
exercise or enforcement of any of the rights, powers or remedies of the
Beneficiaries under this Guaranty or applicable law.


 


4. Consent. The Guarantor hereby consents and agrees that the
time or place of payment of any Obligation may be exchanged or extended, in
whole or in part, to a time certain or otherwise, and may be renewed or
accelerated, in whole or in part; that any of the provisions of the Credit
Agreement may be renewed, extended, modified, increased, accelerated,
compromised, refinanced or waived; that the Borrower may be granted indulgences
or released from liability; that the insolvency, bankruptcy and/or dissolution
of the Borrower or of the Guarantor shall not affect the obligations hereunder
of the Guarantor; that neither the invalidity or unenforceability of any of the
Obligations shall affect the obligations hereunder of the Guarantor; that no
claim need be asserted against any trustee in bankruptcy or receiver or other
representative in the event the Borrower or the Guarantor is adjudicated
bankrupt or becomes insolvent; and that any property to the credit of the
Borrower or the Guarantor or any other party liable for payment of any of the
Obligations may be released from time to time, in whole or in part, at, before
or after the stated, extended or accelerated maturity of such Obligations, all
of which (i) may be effected without notice to or further assent by the
Guarantor and (ii) shall not affect the obligations of the Guarantor under
this Guaranty.


 


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5. Waiver. The Guarantor hereby expressly waives, to the extent
permitted by applicable law:


 


(a) Notice of
acceptance of this Guaranty;


 


(b) Presentment and
demand for payment of any Obligation;


 


(c) Protest and
notice of dishonor or default to the Guarantor or to any other party with
respect to any Obligation or any security for any Obligation;


 


(d) Demand for
payment under this Guaranty;


 


(e) Notice of
disposition of any security for any Obligation;


 


(f) Any defense by
reason of impairment of: (i) any security now or hereafter held for any
Obligation; or (ii) recourse against any party liable for the payment of
any Obligation; and


 


(g) Any other
defense or counterclaim whatsoever, other than indefeasible payment and
performance of the Obligations.


 


6. Guaranty of Payment. This Guaranty is a guaranty of payment and not of
collection. The Guarantor: (a) waives any claim to marshaling of assets
and (b) waives any right to require that an action be brought against the
Borrower or any other Person prior to action against the Guarantor hereunder.
The Guarantor shall be released from all liability hereunder only upon payment
in full of all the Obligations.


 


7. Binding Effect. The provisions of this Guaranty shall be binding upon
the Guarantor and its successors and assigns, and shall inure to the benefit of
each Beneficiary and its successors and permitted assigns. The Guarantor may
not assign its rights, benefits, duties and obligations under this Guaranty
without the prior written consent of the Administrative Agent.


 


8. Right of Set Off. To the extent that the Guarantor has made payment
hereunder to any Beneficiary of all or any portion of principal and interest
required to be paid under the Credit Agreement of such Beneficiary, the full
amount of such payment shall be deducted from amounts allocable and payable to
such Beneficiary pursuant to such Credit Agreement.


 


9. Limitation of Guaranty. Any term or provision of this Guaranty
or the Credit Agreement to the contrary notwithstanding, the maximum aggregate
amount of the Obligations for which the Guarantor shall be liable shall not
exceed the maximum amount for which the Guarantor can be liable without
rendering this Guaranty voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer.


 


10. Representations and Warranties. The Guarantor makes the following
representations, warranties and agreements with the Beneficiaries:


 


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(a) Company
Status. The Guarantor is a duly organized and validly existing limited
liability company in good standing under the laws of the State of New York.


 


(b) Power and
Authority. The Guarantor has the power and authority to execute, deliver
and carry out the terms and provisions of this Guaranty and has taken all
necessary limited liability company action to authorize the execution, delivery
and performance of this Guaranty. The Guarantor has duly executed and delivered
the Guaranty and the Guaranty constitutes the legal, valid and binding
obligation of the Guarantor enforceable in accordance with its terms, except to
the extent that the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws generally
affecting creditors’ rights and by equitable principles (regardless of whether
enforcement is sought in equity or at law).


 


(c) No Violation.
Neither the execution, delivery or performance by the Guarantor of the
Guaranty, nor compliance by the Guarantor with the terms and provisions
thereof, nor the consummation of the transactions contemplated herein or
therein, (i) will contravene any material provision of any applicable law,
statute, rule or regulation, or any order, writ, injunction or decree of
any court or governmental instrumentality, (ii) will conflict or be
inconsistent with or result in any breach of, any of the terms, covenants,
conditions or provisions of, or constitute a default under, or result in the
creation or imposition of (or the obligation to create or impose) any Lien upon
any of the property or assets of the Guarantor pursuant to the terms of any
indenture, mortgage, deed of trust, loan agreement, credit agreement or any
other agreement, contract or instrument to which the Guarantor is a party or by
which it or any of its material property or assets are bound or to which it may
be subject, or (iii) will violate any provision of the certificate of
incorporation of the Guarantor.


 


(d) Litigation.
There are no actions, suits, proceedings or investigations pending or, to the
knowledge of the Guarantor, threatened in writing (i) with respect to this
Guaranty or (ii) with respect to any other matter, as to which there is a
reasonable possibility of an adverse determination and that, if adversely
determined, either individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect.


 


(e) Governmental
Approvals. Except as may have been obtained or made on or prior to the
Closing Date (and which remain in full force and effect on the Closing Date),
no order, consent, approval, license, authorization or validation of, or
filing, recording or registration with, or exemption by, any domestic or
foreign governmental or public body or authority, or any subdivision thereof,
is required to authorize, in respect of the Guarantor, or is required to be
obtained by the Guarantor in connection with (i) the execution, delivery
and performance by the Guarantor of this Guaranty or (ii) the legality,
validity, binding effect or enforceability of this Guaranty with respect to the
Guarantor.


 


11. Reinstatement. This Guaranty shall remain in full force and effect
and continue to be effective or be reinstated, as the case may be, if at any
time payment or performance of the Obligations, or any part thereof, is,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise
be restored or returned by any obligee of the Obligations or such part thereof,


 


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whether as a “voidable
preference,” “fraudulent transfer,” or otherwise, all as though such payment or
performance had not been made. In the event that, and to the extent that, any
payment, or any part thereof, is rescinded, reduced, restored or returned, the
Obligations shall, to the fullest extent permitted by law, be reinstated, and
shall be deemed reduced only by such amount paid and not so rescinded, reduced,
restored or returned.


 


12. Subrogation. After (and not before) all amounts payable under or
in respect of the Credit Agreement and all other Obligations have been
indefeasibly paid in full and in cash and fully performed, the Guarantor shall
be subrogated to the rights of the Beneficiaries to receive payments in respect
of the Credit Agreement and the other Obligations, but only to the extent of
amounts paid by the Guarantor under this Guaranty.


 


13. Amendment. This Guaranty may not be modified or amended except
by a writing duly executed by the Guarantor and the Administrative Agent.


 


14. Law. THIS GUARANTY SHALL BE CONSTRUED IN
ACCORDANCE WITH, AND THIS GUARANTY AND ALL CLAIMS AND CAUSES OF ACTION ARISING
OUT OF THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY, THE LAWS (OF
THE STATE OF NEW YORK (OTHER THAN CHOICE OF LAW RULES THAT WOULD REQUIRE THE
APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION).


 


15. Severability. Wherever possible, each provision of this Guaranty
shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be invalid under
such laws, such provision shall be ineffective only to the extent of such
prohibition or invalidity, without affecting the remainder of such provision or
the remaining provisions of this Guaranty, which shall be binding and
enforceable to the fullest extent allowable by law.


 


16. Waiver. Waiver by the Administrative Agent of a breach of
this Guaranty shall not operate as a waiver of any subsequent breach thereof.


 


17. Signatures; Counterparts. Facsimile transmissions of any executed
original document and/or retransmission of any executed facsimile transmission
shall be deemed to be the same as the delivery of an executed original. At the
request of any party hereto, the other parties hereto shall confirm facsimile
transmissions by executing duplicate original documents and delivering the same
to the requesting party or parties. This Guaranty may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same instrument.


 


18. Notices. All notices, requests and other communications to be
given or otherwise made to any party hereto shall be deemed to be sufficient if
contained in a written instrument duly transmitted by facsimile or duly sent by
overnight courier service or first class registered or certified mail, postage
prepaid, addressed to such party at the address set forth below or at such
other address as may hereafter be designated in writing by the addressee to the
addressor listing all parties:


 


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(a)                      if to the Guarantor:


 


Container Leasing International, LLC


One Maynard Drive


Park Ridge, New Jersey 07656


Fax: 201-391-0356


Phone: 201-949-2032


Attention: David F. Doorley


 


(b)                     if to the Administrative Agent, to the
address(es) set forth in the Notices section of the Credit Agreement:


 


19. Consents and Waivers Relating to Legal Proceedings.


 


(a) THE GUARANTOR AND EACH BENEFICIARY (BY ACCEPTANCE OF
RIGHTS HEREUNDER) WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY ACTION UNDER THIS
GUARANTY OR ANY ACTION ARISING OUT OF THE TRANSACTIONS CONTEMPLATED HEREBY, REGARDLESS
OF WHICH PARTY INITIATES SUCH ACTION OR ACTIONS.


 


(b) Pursuant
to Section 5-1402 of the New York General Obligations Law, all actions or
proceedings arising in connection with this Guaranty shall be tried and
litigated in state or Federal courts located in the Borough of Manhattan, New
York City, State of New York. THE GUARANTOR
AND (BY ACCEPTANCE OF RIGHTS HEREUNDER) EACH BENEFICIARY WAIVES ANY RIGHT IT MAY HAVE
TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS,
TO ASSERT THAT IT IS NOT SUBJECT TO THE JURISDICTION OF SUCH COURTS OR TO
OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS
SECTION. Nothing
contained in this clause shall preclude the Administrative Agent from bringing
any action or proceeding arising out of or relating to this Guaranty in the
courts of any place where the Guarantor or any of its assets or assets of the
Borrower or any of its assets may be found or located.


 


20. Guaranty Enforceable by Administrative Agent. Notwithstanding anything to the contrary
contained elsewhere in this Guaranty, the Beneficiaries agree (by their
acceptance of the benefits of this Guaranty) that this Guaranty may be enforced
only by the action of the Administrative Agent, in each case acting upon the
instructions of the Lenders.


 


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IN WITNESS WHEREOF, the undersigned have executed this Guaranty as of the
31st day of October, 2007.


 


	
   

  	
  CONTAINER
  LEASING INTERNATIONAL,  LLC (d/b/a Carlisle Leasing
  International, LLC)

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David F. Doorley

  
	
   

  	
  Name:  

  	
  David
  F. Doorley

  
	
   

  	
  Title:

  	
  Treasurer

  



 


Guaranty