Exhibit 99.3
CONTINUING
GUARANTY
( The First American
Corporation )
THIS CONTINUING
GUARANTY (“
Guaranty ”) is entered into as February 2, 2007,
by THE FIRST AMERICAN CORPORATION , a California corporation
(“ Guarantor ”), in favor of the Administrative
Agent, on behalf and for the benefit of the Lenders named in the
Credit Agreement and the other Loan Documents (as such terms are
defined below).
RECITALS
A. First American Real Estate
Solutions LLC, a California limited liability company (the “
Borrower ”) is entering into a Credit Agreement dated
of even date herewith (as the same from time to time hereafter may
be amended, modified, supplemented or restated, the “
Credit Agreement ”) among the Borrower, as borrower,
the banks, financial institutions and other institutional lenders
from time to time party thereto and referred to as Lenders therein
(the “ Lenders ”), and Wells Fargo Bank,
National Association, not in its individual capacity, but in its
separate capacity as the Administrative Agent for the benefit of
the Lenders (in such latter capacity, the “ Administrative
Agent ”), pursuant to which the Lenders have agreed to
extend the Loans to the Borrower on the terms and subject to the
conditions set forth in the Credit Agreement and the other Loan
Documents.
B. Guarantor, through its
wholly-owned subsidiary First American Real Estate Information
Services, Inc., being the owner of 80% of the issued and
outstanding equity interests in the Borrower, will obtain
substantial direct and indirect benefit from the Loans made,
extended or maintained by the Lenders to the Borrower under the
Credit Agreement.
C. The Lenders are willing to make,
extend and maintain the Loans to the Borrower on and after the date
of the Credit Agreement, but only upon the condition, among others,
that Guarantor shall execute and deliver this Guaranty to the
Administrative Agent.
D. To induce, and in consideration
of, the agreement of the Lenders to make, extend and maintain the
Loans to the Borrower under the Credit Agreement and the other Loan
Documents, Guarantor is willing to guaranty the full, complete and
final payment by the Borrower of all of the Guaranty Obligations
(as defined below), all as further set forth herein.
AGREEMENT
NOW, THEREFORE,
in consideration of the foregoing
Recitals, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, and
intending to be legally bound, Guarantor hereby represents,
warrants, covenants and agrees as follows:
Section 1.
Definitions . All
capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement. Rules of
construction set forth in Section 1.02 of the Credit Agreement
shall apply to this Guaranty to the same extent as they apply to
the Credit Agreement.
1.
Section 2.
Guaranty .
(a) Unconditional Guaranty of
Payment . Guarantor hereby irrevocably, absolutely and
unconditionally guarantees to the Administrative Agent, on behalf
and for the benefit of the Lenders and their respective successors,
indorsees, transferees and assigns, the prompt, complete and final
payment in cash when due (whether at stated maturity, by
acceleration or otherwise) of all Obligations, including, without
limitation, the payment of all expenses, including reasonable
attorneys’ fees, incurred by the Administrative Agent or any
Lender incidental to the collection of the Obligations and the
enforcement or protection of the Administrative Agent’s or
any Lender’s security interest in the Collateral or any other
collateral securing the Guaranty Obligations (as defined below),
whether such Obligations are made, incurred or created now or
hereafter, whether voluntary or involuntary and whether due or not
due, absolute or contingent, liquidated or unliquidated, determined
or undetermined, and whether recovery upon such indebtedness may be
or hereafter become unenforceable. The obligations and covenants to
be performed by Guarantor under this Guaranty shall hereinafter be
collectively referred to as the “ Guaranty Obligations
.”
(b) Expenses . Guarantor
agrees to pay all out of pocket expenses, including reasonable
attorneys fees, incurred by the Administrative Agent and the
Lenders in connection with the enforcement of their respective
rights under this Guaranty.
(c) Separate Obligations .
The Guaranty Obligations of Guarantor arising hereunder are
independent of and separate from any and all obligations of
Guarantor to the Lenders or the Administrative Agent arising under
any other Loan Document executed by Guarantor and delivered to the
Lenders or the Administrative Agent.
Section 3.
Payments . All
payments to be made by Guarantor to the Lenders or the
Administrative Agent hereunder shall be made without set-off or
counterclaim in lawful money of the United States of America, in
immediately available funds, addressed to the Administrative Agent,
for the benefit of the Lenders, at the Administrative Agent’s
payment office specified in the Credit Agreement and shall be
accompanied by a notice from Guarantor stating that such payments
are made under this Guaranty.
Section 4.
Representations and
Warranties . Guarantor hereby represents and warrants to
the Administrative Agent for the benefit of the Lenders, as of the
date it executes and delivers this Guaranty, as follows:
(a) Organization . Guarantor
is duly formed and validly existing under the laws of the State of
California and has all requisite power and authority to enter into
and perform its obligations under this Guaranty.
(b) Capacity; Due Authorization;
Non-Contravention . The execution, delivery and performance by
Guarantor of this Guaranty and any other Loan Document executed or
to be executed by it have been duly authorized by all necessary
action, and do not contravene its organizational documents; and in
each case do not:
(1) contravene any contractual
restriction under any loan agreement, indenture or other agreement
or instrument evidencing any material Indebtedness of Guarantor,
including the First American Credit Agreement;
2.
(2) contravene any material
regulation, code, ordinance, order, decree, judgment, injunction,
notice or binding agreement issued, promulgated or entered into by
any Governmental Authority or arbitrator binding on or affecting
Guarantor; or
(3) result in, or require the
creation or imposition of, any Lien on any of Guarantor’s
properties or assets.
(c) Binding Obligations .
This Guaranty, when executed and delivered, constitutes, and each
other Loan Document executed by Guarantor will, on the due
execution and delivery thereof, constitute, the legal, valid and
binding obligations of Guarantor, enforceable against Guarantor in
accordance with their respective terms, except as enforcement
thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or similar laws of general applicability
affecting the enforcement of creditors’ rights and
(ii) the application of general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(d) Information . All
information with respect to Guarantor set forth in any schedule,
certificate or other writing at any time furnished by Guarantor to
the Administrative Agent or any Lender, and all other written
information at any time furnished by Guarantor to the
Administrative Agent or any Lender, is and shall be true and
correct in all material respects as of the date
furnished.
(e) Authorization; Approval .
No authorization, approval, or other action by, and no notice to or
filing with, any Governmental Authority, or any other Person is
required for the execution, delivery, and performance of this
Guaranty by Guarantor, except such as have been obtained or made as
of the Closing Date and are in full force and effect.
(f) Litigation . To
Guarantor’s knowledge, there is no investigation, claim,
action, suit or proceeding affecting Guarantor or the Borrower
pending or threatened before any court, arbitrator, mediator or
Governmental Authority that, if adversely determined, could
reasonably be expected, individually or in the aggregate, to result
in a material adverse effect on the ability of Guarantor to perform
its obligations under this Guaranty.
(g) Insolvency . The
incurrence of the Guaranty Obligations will not cause Guarantor to
not be Solvent. For purposes of this Guaranty,
“Solvent” shall mean, with respect to any Person, that
(1) the amount of the “present fair saleable
value” of the assets of such Person, as of such date, exceeds
the amount of all “liabilities of such Person, contingent or
otherwise,” as of such date, as such quoted terms are
determined in accordance with applicable federal and state laws
governing determinations of the insolvency of debtors,
(2) such Person does not have, as of such date, an
unreasonably small amount of capital with which to conduct its
business, and (3) such Person will be able to pay its debts as
they mature. For purposes of this definition,
(i) “debt” means liability on a
“claim,” and (ii) “claim” means any
(A) right to payment, whether or not such a right is reduced
to judgment, liquidated, unliquidated, fixed,
3.
contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured or unsecured or
(B) right to an equitable remedy for breach of performance if
such breach gives rise to a right to payment, whether or not such
right to an equitable remedy is reduced to judgment, fixed,
contingent, matured or unmatured, disputed, undisputed, secured or
unsecured.
(h) No Default . There is no
Default or Event of Default (each as defined therein) existing
under the First American Credit Agreement.
Section 5.
Absolute Guaranty
. Guarantor agrees that
the liability hereunder shall be the immediate, direct, and primary
obligation of Guarantor, and shall not be contingent upon the
Lenders’ or the Administrative Agent’s exercise or
enforcement of any remedy they or it may have against either of the
Borrower or any other Person or any other guarantor of the
Obligations, or against the Collateral or any other collateral
securing the Guaranty Obligations. Without limiting the generality
of the foregoing, the Guaranty Obligations shall remain in full
force and effect without regard to and shall not be impaired or
affected by, nor shall Guarantor be exonerated or discharged by,
any of the following events:
(a) Insolvency, bankruptcy,
reorganization, arrangement, adjustment, composition, assignment
for the benefit of creditors, liquidation, winding up or
dissolution of the Borrower, Guarantor or any other guarantor of
the Obligations;
(b) Any limitation, discharge, or
cessation of the liability of the Borrower (other than by the final
payment in full in cash of the Obligations pursuant to the Credit
Agreement), Guarantor or any other guarantor of the Obligations due
to any regulation, code, ordinance, order, decree, judgment,
injunction, notice or binding agreement issued, promulgated or
entered into by any Governmental Authority or arbitrator, or any
invalidity or unenforceability in whole or in part of the Loan
Documents or any other documents evidencing the Obligations or any
other guaranty of the Obligations;
(c) Any merger, acquisition,
consolidation or change in structure of the Borrower, Guarantor or
any other guarantor of the Obligations or any sale, lease, transfer
or other disposition of any or all of the assets or equity
interests of the Borrower, Guarantor or any other guarantor of the
Obligations;
(d) Any assignment or other
transfer, in whole or in part, of any Lender’s or the
Administrative Agent’s interests in and rights under this
Guaranty, the Credit Agreement or any of the other Loan Documents,
including the right to receive payment of the Obligations or the
Guaranty Obligations, as the case may be, or any assignment or
other transfer, in whole or in part, of any Lender’s or the
Administrative Agent’s Lien on or in the Collateral or any
other collateral securing the Guaranty Obligations;
(e) Any claim, defense, counterclaim
or setoff (other than by the final payment in full in cash of the
Obligations pursuant to the Credit Agreement) that the Borrower,
Guarantor or any other guarantor of the Obligations may have or
assert, including, but not limited to, any defense of incapacity or
lack of authority to execute any documents relating to the
Obligations, the Guaranty Obligations, the Collateral, or any other
collateral securing the Guaranty Obligations;
4.
(f) Any amendment, modification,
renewal, extension, cancellation or surrender of any Loan Document
or agreement, document or instrument relating to the Credit
Agreement, the Obligations, the Collateral or the Guaranty
Obligations or any exchange,
