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EXHIBIT 10.12
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT (this "Sublease") is made as of the 31st day of
July, 1997 between EQUIFAX INC., a Georgia corporation ("Sublandlord"), and
EQUIFAX SERVICES INC., a Georgia corporation ("Subtenant").
R E C I T A L S
1600 Peachtree, L.L.C. (the "Prime Landlord"), as lessor, and
Sublandlord, as lessee, entered into that certain Headquarters Facility Lease
(as the same may be amended, renewed or extended from time to time, the "Prime
Lease"), dated as of March 11, 1994, for the lease by Sublandlord of that
certain property and building known as 0000 Xxxxxxxxx Xxxxxx, XX, according to
the current system of numbering, located in Atlanta, Georgia, as more
particularly described in the Prime Lease (the "Property"). The building located
on the Property is herein referred to as the "Building."
Sublandlord and Subtenant desire to enter into this Sublease, pursuant
to the terms of which Subtenant will lease from Sublandlord and Sublandlord will
lease to Subtenant a portion of the Building and related facilities on the
Property.
A G R E E M E N T
NOW THEREFORE, for and in consideration of Ten and No/100 Dollars
($10.00) and the mutual covenants and obligations set forth in this Sublease,
Sublandlord and Subtenant do hereby agree as follows:
1. Subleased Premises. Sublandlord does hereby lease to Subtenant, and
Subtenant leases and rents from Sublandlord that portion of the first floor of
the Building consisting of approximately 12,000 rentable square feet as shown
outlined and cross-hatched on the floor plan attached hereto as Exhibit A and
incorporated herein by this reference (the "Subleased Premises"). The Subleased
Premises are being leased by Sublandlord to Subtenant "as is" and Subtenant
accepts the Subleased Premises in such condition. Sublandlord shall not be
obligated to construct any demising walls or make any improvements whatsoever
with regard to the Subleased Premises. Subtenant shall make no alterations
within the Subleased Premises without the prior written consent of Sublandlord.
2. Parking; Use of Common Areas and Facilities.
(a) Use of General Parking and Reserved Parking. Subtenant may use
the parking facilities on the Property on a first-come, first-served basis, so
long as Subtenant's use is in compliance with building code requirements.
Certain parking spaces on the Property are marked "Reserved" and shall not be
available for use by Subtenant,
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except that Subtenant's individual employees may qualify for use of such
reserved parking spaces under the same procedures and years of service
requirements as are applicable to Equifax, receiving credit for years of service
with Equifax immediately prior to the date of this Sublease.
(b) Use of Related Facilities and Services. Subtenant is granted a
license to use, on a non-exclusive basis, the common areas used as such by
Sublandlord, conference rooms, training rooms, cafeteria facilities and mailroom
facilities in the Building, as more specifically described in Exhibit B attached
hereto and incorporated herein by this reference. Conference rooms and training
rooms shall be scheduled on an availability basis in accordance with
Sublandlord's reservation procedures. Subtenant shall pay its pro rata share of
overhead allocable to such areas as Additional Rent as set forth below.
Subtenant's mail may be delivered to the Sublandlord's mail room and shall be
delivered to one location within the Subleased Premises (i.e., Sublandlord shall
have no responsibility for delivering Subtenant's mail directly to individual
addressees).
3. Term. The term of this Sublease ("Sublease Term") shall be for five
(5) years, commencing at 5:00 p.m. on the 31st day of July, 1997 and expiring at
12:00 midnight on July 30, 2002, unless the Prime Lease or this Sublease is
sooner terminated in accordance with the terms and conditions set forth therein
or herein. Subtenant has no options to renew or extend the Sublease Term.
4. Rent. Subtenant shall pay to Sublandlord a base rent ("Base Rent")
of One Hundred Thousand Eight Hundred Seven and no/100 Dollars per annum
($100,807.00). The Base Rent shall be payable by Subtenant to Sublandlord in
advance in twelve equal monthly installments of Eight Thousand Four Hundred and
60/100 Dollars ($8,400.60) each, which are due and payable on or before the
first day of each calendar month during the Sublease Term with appropriate
prorations for partial months.
5. Additional Rent.
(a) Subtenant agrees to reimburse Sublandlord throughout the
Sublease Term, as "Additional Rent" hereunder, for Subtenant's Share (as defined
below) of the annual Operating Expenses (as defined below). Subtenant shall pay
to Sublandlord, monthly within ten (10) days of delivery of an invoice therefor,
the Additional Rent hereunder accrued through the immediately preceding calendar
month. For any partial period to which an Operating Expense is allocable but
this Sublease is not in effect (by way of illustration only, annual insurance
premiums for coverage expiring after termination of the Sublease Term),
Subtenant's Share for such period shall be subject to a pro rata adjustment
based upon the number of days prior to the expiration of the Sublease Term. If
any payments are estimated or adjusted after payment, then at the end of any
calendar year if Subtenant has paid to Sublandlord an amount in excess of
Subtenant's Share of Operating Expenses for such calendar year, Sublandlord
shall reimburse to Subtenant any such excess amount (or shall apply any such
excess amount to any amount then owing to
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Sublandlord hereunder, and if none, to the next due installment or installments
of Additional Rent due hereunder, at the option of Sublandlord, or if Subtenant
has paid to Sublandlord less than Subtenant's Share of Operating Expenses for
such calendar year, Subtenant shall pay to Sublandlord any such deficiency
within ten (10) days after Subtenant receives an invoice therefor.
(b) The term "Subtenant's Share" shall mean the percentage
determined by dividing the rentable square footage of the Subleased Premises by
the rentable square footage of the Building. Sublandlord and Subtenant hereby
agree that Subtenant's Share is 3.25% (calculated upon the Building square
footage of 369,329 and the Subleased Premises square footage of 12,000). If
Subtenant does not occupy the Subleased Premises during the entire full calendar
year in which the Sublease Term commences or ends, Subtenant's Share of
Operating Expenses excess for the applicable calendar year shall be
appropriately prorated for the partial year, based on the number of days
Subtenant has occupied the Subleased Premises during that year.
(c) "Operating Expenses" shall be all those expenses of operating,
servicing, managing, maintaining and repairing the Property, Building, all
parking areas and related common areas in a manner deemed by Sublandlord
reasonable and appropriate and in a manner consistent with first-class office
buildings in metropolitan Atlanta, Georgia. All Operating Expenses shall be as
actually incurred by Sublandlord. Subtenant may have reasonable access to
Sublandlord's records in order to audit or otherwise verify Subtenant's Share of
such expenses. Operating Expenses shall include, without limitation, the
following:
(1) All taxes and assessments, whether general or special,
applicable to the Property and the Building, which shall include real and
personal property ad valorem taxes, and any and all reasonable costs and
expenses incurred by Sublandlord in seeking a reduction of any such taxes
and assessments. However, Subtenant shall not be obligated for taxes on
the net income to Sublandlord for the sublease hereunder, unless there is
imposed in the future a tax on rental income on the Building in lieu of
the real property ad valorem taxes, in which event such tax shall be
deemed an Operating Expense of the Building;
(2) Insurance premiums and deductible amounts, including,
without limitation, for commercial general liability, "all risks"
property, rent loss and other coverages carried by Sublandlord on the
Building and Property as required by the Prime Lease;
(3) Overhead allocated to operation, repair and maintenance
of the parking areas, common areas, conference rooms, training rooms,
cafeteria facilities (including any subsidization of meal costs) and
mailroom facilities, in accordance with Exhibit B hereto, as allocated by
Sublandlord's cost management system;
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(4) All expenses borne by Sublandlord with respect to the
Building or the Property pursuant to the Prime Lease;
(5) All utilities, including, without limitation, water,
electricity, power, heating, lighting, ventilation, sanitary sewer and air
conditioning of the Building, but not including those utility charges
actually paid directly by Subtenant, if any;
(6) Landscaping and janitorial and maintenance expenses,
including janitorial services and janitorial supplies and other materials
used in the operation and maintenance of the Building, and the cost of
maintenance and service agreements on equipment, window cleaning, grounds
maintenance, pest control, security, trash and snow removal, and other
similar services or agreements;
(7) The costs, including interest, amortized over its useful
life, of any capital improvement made to the Building by or on behalf of
Sublandlord after the date of this Sublease which is required under any
governmental law or regulation (or any judicial interpretation thereof)
that was not applicable to the Building as of the date of this Sublease,
and of the acquisition and installation of any device or equipment
designed to improve the operating efficiency of any system within the
Building;
(8) All services, supplies, repairs, replacements or other
expenses directly and reasonably associated with servicing, maintaining,
managing and operating the Building, including, but not limited to the
lobby, vehicular and pedestrian traffic areas and other common use areas;
(9) Wages and salaries of Sublandlord's employees (not above
the level of building manager) engaged in the maintenance, operation,
repair and services of the Property, including taxes, insurance and
customary fringe benefits;
(10) Legal and accounting costs;
(11) Costs to maintain and repair the Building and Property;
(12) Security costs unless the cost of that service contract
is already included in Operating Expenses as described above.
(d) Operating Expenses shall not include the cost of long distance
telephone service or any telephone related expense in excess of basic service
(unless Sublandlord obtains such services for all telephones in the Building and
pays for the same).
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(e) For the utility costs included in Operating Expenses, the
electricity provided to the Subleased Premises shall be on a level suitable for
normal office use, including usual and normal small office machines and similar
equipment using 110 volt current, and lighting of the Subleased Premises to
building standard light levels produced by building standard lighting fixtures
(Subtenant being obligated to pay for replacement of all light bulbs including
fluorescent tubes). Seasonal air conditioning and heating shall be on Monday
through Friday inclusive, with holidays observed by Sublandlord and legal
holidays excepted, from 8:00 A.M. to 5:00 P.M. Sublandlord reserves the right to
prohibit installation within the Subleased Premises of equipment using
electricity in amounts greater than the amounts provided, including, but not
limited to, non-standard lighting, electric heaters, air conditioners, data
processing and duplicating equipment, stoves, microwaves, refrigerators and
vending machines. Sublandlord shall not be liable for any damages directly or
indirectly resulting from the installation, use, or interruption of use of
utilities or the furnishing of services referred to in this paragraph where such
interruption results from circumstances beyond Sublandlord's reasonable control
or from interruptions made necessary by repairs and maintenance being undertaken
by Sublandlord.
6. Use and Maintenance. Subtenant's use of the Subleased Premises shall
be strictly in accordance with the use provisions of the Prime Lease.
Subtenant's maintenance obligations with respect to the Subleased Premises shall
be the same as Sublandlord's maintenance obligations with respect to the
Property and the Building pursuant to the terms of the Prime Lease, except that
Sublandlord and not Subtenant shall be responsible for maintenance of the
exterior and structural portions of the Subleased Premises.
7. Relationship to Prime Lease. This Sublease and all of Subtenant's
rights hereunder are expressly subject to and subordinate to all of the terms of
the Prime Lease. Subtenant hereby acknowledges that it has received a copy of
the Prime Lease and has read all of the terms and conditions thereof.
Sublandlord shall provide to Subtenant copies of all modifications or amendments
to the Prime Lease which in any manner affect Subtenant's obligations hereunder.
Subtenant hereby agrees to and does assume all obligations of Sublandlord, as
Lessee under the Prime Lease, with respect to the Subleased Premises. All of the
terms and conditions of the Prime Lease are hereby incorporated into this
Sublease by reference as if fully set forth herein, except for Article 18 and
all provisions relating to the "Vacant Land", as therein defined, and except
that "LESSOR" shall be read as "Sublandlord" and "LESSEE" shall be read as
"Subtenant"; provided, however, that Subtenant hereby acknowledges that
Subtenant shall look solely to Sublandlord for the performance of all the Prime
Landlord's obligations under the Prime Lease and that Sublandlord shall not be
obligated with respect to such obligations unless the same are fulfilled by the
Prime Landlord under the Prime Lease.
8. Default. Any act or omission by Subtenant that would constitute a
default under the Prime Lease shall be deemed a default by Subtenant under this
Sublease. In addition, any failure by Subtenant to pay Base Rent when due (and
the continuance of
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such failure for five (5) days following notice from Sublandlord to Subtenant)
or any failure by Subtenant to perform any other obligations required under this
Sublease (and the continuance of such failure for five (5) days following notice
from Sublandlord to Subtenant) shall be deemed a default hereunder. Any such
default by Subtenant shall entitle Sublandlord to exercise any and all remedies
available to Prime Landlord under the Prime Lease or any other remedies
available at law or in equity under the laws of the State of Georgia.
9. Quiet Enjoyment. Provided Subtenant has performed its obligations
hereunder, Subtenant shall have the quiet enjoyment of the Subleased Premises
without interference by Sublandlord. Sublandlord shall use its reasonable
business judgment in determining when and whether to enforce Prime Landlord's
obligations under the Prime Lease, but if Sublandlord chooses not to pursue an
action to enforce any of Prime Landlord's obligations, Subtenant shall have no
right to any recourse or action or claim against Prime Landlord, Subtenant's
only rights with respect to the Subleased Premises being against the Sublandlord
in accordance with the terms hereof.
10. Insurance and Indemnities. Subtenant hereby agrees to indemnify and
hold Prime Landlord harmless, with regard to Subtenant's leasing and use of
Subleased Premises, to the same extent that the "Lessee" under the Prime Lease
is required to indemnify and hold Prime Landlord harmless with respect to the
Property. Subtenant shall not be required to carry casualty insurance with
respect to the Subleased Premises, which coverage shall be maintained by
Sublandlord as provided in Section 12.01(ii) of the Prime Lease. Subtenant shall
maintain commercial general liability insurance coverage with respect to its
operations at the Subleased Premises, in compliance with the provisions of
Section 12 of the Prime Lease, which shall name Prime Landlord and Sublandlord
as additional insureds as their interests may appear. Subtenant hereby agrees to
obtain and provide evidence satisfactory to Sublandlord, on or before the date
of this Sublease, that Subtenant is carrying such insurance in the same amounts
and otherwise in compliance with the Prime Lease as required to be carried by
Sublandlord with regard to the Property. Subtenant shall also maintain adequate
coverage on all of Subtenant's personal property.
11. Casualty and Condemnation. All provisions of the Prime Lease with
respect to casualty loss and condemnation or conveyance in lieu thereof shall
apply with respect to the Subleased Property. Subtenant further acknowledges and
agrees that if the Subleased Premises are affected in a condemnation or
conveyance in lieu thereof, Subtenant shall not be entitled to any of Prime
Landlord's or Sublandlord's award.
12. Subleasing and Assignment. Subtenant shall not and shall have no
right to voluntarily, involuntarily or by operation of law, assign, transfer,
hypothecate or otherwise encumber this Sublease, or any interest herein, and
shall not sublet nor permit the use by others of the Subleased Premises or any
part thereof without first obtaining in each instance Sublandlord's prior
written consent, which consent Sublandlord shall be entitled to withhold in its
sole discretion. Any such assignment, sublease, transfer or
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hypothecation without Sublandlord's prior written consent shall be null and void
and shall constitute an immediate event of default under this Sublease. No
acceptance by Sublandlord of any rent or any other sum of money from any
assignee, sublessee or other category of transferee shall release Subtenant from
any of its obligations hereunder or be deemed to constitute Sublandlord's
consent to any assignment, sublease, transfer or hypothecation.
13. No Estate in Land. No estate in land is created hereby, and
Subtenant shall have only a usufruct in the Subleased Premises, not subject to
encumbrance, mortgage, transfer, assignment or other conveyance.
14. Early Termination by Either Party. Sublandlord has the right to
terminate this Sublease prior to expiration of the Sublease Term upon not less
than six (6) months prior written notice to Subtenant. After the first
anniversary date hereof, Subtenant has the right to terminate this Sublease
prior to expiration of the Sublease Term upon not less than six (6) months prior
written notice to Subtenant. Such termination shall be effective at midnight on
the day which is the later to occur of the date specified in such notice, or the
date which is six (6) months from the date such notice is delivered.
15. Holding Over. If Subtenant remains in possession of the Subleased
Premises after expiration of the Sublease Term or earlier termination date
designated pursuant to paragraph 14 above, with Sublandlord's acquiescence and
without any distinct agreement of the parties, then Subtenant by virtue of this
paragraph shall become a tenant from month-to-month at a monthly base rent,
payable in advance, in an amount equal to twice the amount of Base Rent payable
for the last month of the Sublease Term and otherwise subject to all of the
conditions and covenants of this Sublease as though this Sublease had originally
been a month-to-month tenancy. In no event shall there be a renewal of this
Sublease by operation of law, and any such month-to-month tenancy may be
terminated by either Sublandlord or Subtenant by giving thirty (30) days written
notice to the other. Specifically notwithstanding the foregoing, if Subtenant
shall remain in possession of the Subleased Premises as a holdover tenant
without the acquiescence of Sublandlord or otherwise in violation of the terms
and provisions of this Sublease, in addition to any other rights and remedies
available to Sublandlord, Sublandlord shall have the immediate right to reenter
and take possession of the Subleased Premises.
16. Surrender of Subleased Premises. At the expiration or earlier
termination of this Sublease, Subtenant shall surrender the Subleased Premises
(and all keys to the Subleased Premises) to Sublandlord in the condition
required by the Prime Lease. Any property of Subtenant left upon the Subleased
Premises at the termination of this Sublease shall be deemed abandoned by
Subtenant, and Sublandlord may thereafter use or dispose of such property as
Sublandlord sees fit without obligation to Subtenant. Subtenant shall reimburse
Sublandlord on demand for Sublandlord's costs and expenses in removing and
disposing of such property, and Subtenant shall further indemnify and hold
Sublandlord
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free and harmless from any liability, claim or expense suffered or incurred by
Sublandlord in connection with the removal or disposal of such property.
17. Subordination. Subject to the terms of Section 19.06 of the Prime
Lease, this Sublease and all rights of Subtenant hereunder are and shall be
inferior to any mortgage, deed to secure debt, deed of trust or other instrument
in the nature thereof which may now or hereafter affect Sublandlord's interest
in the Subleased Premises or Building, and to any modifications, renewals,
consolidations, extensions or replacements of any such security instrument. This
paragraph shall be self-operative, and no further instrument of subordination
shall be necessary for the holder of any such security instrument. Subtenant
shall, however, execute, acknowledge and deliver to Sublandlord or the holder of
any such security instrument, upon demand and without expense, any and all
instruments that may be requested by Sublandlord for the purpose of
subordinating this Sublease and the rights of Subtenant hereunder to the rights
and interests of the holder of such security instrument and for any and all
purposes reasonably related thereto, including without limitation evidence that
Subtenant shall attorn to and recognize any successor to Sublandlord under this
Sublease.
18. Estoppel Certificates. Subtenant shall at any time and from time to
time, upon not less than ten (10) days' prior written notice from Sublandlord,
execute, acknowledge and deliver to Sublandlord, or Sublandlord's designee, a
statement in writing (a) certifying that this Sublease is unmodified and in full
force and effect (or, if modified, stating the nature of such modification), (b)
stating that Subtenant has accepted occupancy of the Subleased Premises, (c)
specifying the dates to which rent, and other amounts due hereunder have been
paid, and (d) certifying that there are no existing defaults on the part of
Sublandlord or Subtenant hereunder and that Subtenant has no defenses or offsets
against the enforcement of this Sublease or specifying such defaults, defenses
or offsets if any are claimed.
19. Exculpation. Sublandlord's obligations and liability to Subtenant
with respect to this Sublease shall be limited solely to Sublandlord's interest
in the Subleased Premises, and neither Sublandlord, nor any of the
representatives, partners, officers, directors or shareholders of Sublandlord,
shall have any personal liability whatsoever with respect to this Sublease or
Sublandlord's obligations hereunder.
20. Environmental Matters. All warranties and covenants made by
Sublandlord in Article 16 of the Prime Lease are hereby made by Subtenant on its
own behalf to and for the benefit of Sublandlord with respect to Subtenant's
possession and occupancy of the Subleased Premises, including without limitation
the indemnity set forth in Section 16.04 of the Prime Lease, and Subtenant shall
and hereby does indemnify Sublandlord for any failure of Subtenant, its agents,
employees or invitees to comply with such covenants and warranties.
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21. Indemnification. Unless due solely to the gross negligence or
misconduct of Sublandlord or its agents, neither Sublandlord nor Sublandlord's
agents shall be liable to Subtenant or Subtenant's agents, contractors or
visitors, and Subtenant shall and does hereby indemnify and hold Sublandlord
harmless from and against any and all loss, cost, liability, claim, damage or
expense (including, without limitation, reasonable attorneys' fees, court costs
and costs of investigation) incurred in connection with or arising from (a) any
default by Subtenant in the performance of any of the terms and provisions of
this Sublease on Subtenant's part to be performed; (b) Subtenant's use and
occupancy of the Subleased Premises; or (c) any acts, omissions or-negligence of
Subtenant, its agents, employees and guests in or about the Subleased Premises,
including, without limitation, any breach of security, or loss or
misappropriation of Sublandlord's proprietary or confidential information.
Subtenant, and all those claiming by, through or under Subtenant, shall store
their property in and shall occupy and use the Subleased Premises and all
portions of the Building and related improvements to which they are entitled
hereunder solely at their own risk. Subtenant and all those claiming or entering
the Subleased Premises by, through or under Subtenant hereby release
Sublandlord, to the full extent permitted by law, from all claims of every kind,
including, without limitation, personal injury, property damage, loss or other
damages occurring by theft or mysterious disappearance, or business
interruption, unless caused by or due to the gross negligence or misconduct of
Sublandlord.
22. Notices. Notices by Sublandlord and Subtenant shall be given to each
other in the same manner provided by the Prime Lease:
Sublandlord:
Equifax Inc.
0000 Xxxxxxxxx Xxxxxx, XX
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
Subtenant:
Equifax Services Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
23. Brokers. Each party represents to the other that it has not dealt
with any real estate broker, sales person or finder in connection with this
Sublease. Each party hereby agrees to indemnify and hold the other harmless from
and against any liabilities and claims for commissions and fees due or claimed
to be due by any party claiming to have dealt with the indemnifying party in
connection with this Sublease.
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24. Governing Law; Time of Essence; Miscellaneous. This Sublease shall
be governed by the laws of the State of Georgia. Time shall be of the essence
with regard to the terms and provisions of this Sublease. This Sublease
supersedes all prior discussions and agreements between the parties and
incorporates their entire agreement with respect to the subject matter hereof
and no representations or agreements, oral or otherwise, between the parties not
embodied herein shall be of any force or effect. Any term used in this Sublease
which begins with initial capital letters and is not defined herein shall have
the same meaning attributable to that term in the Prime Lease. No failure of
Sublandlord to exercise any power given Sublandlord hereunder, or to insist upon
strict compliance by Subtenant of any obligation hereunder, and no custom or
practice of the parties at variance with the terms hereof, shall constitute a
waiver of Sublandlord's right to demand exact compliance with the terms hereof.
This Sublease may be executed in one or more counterparts, each of which shall
be deemed an original, and all of which shall constitute one and the same
instrument. All modifications of this Sublease must be in writing and signed by
the party to be bound. Subtenant shall not record this Sublease nor any
memorandum hereof.
(Signatures Begin on Next Page)
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[Signature Page to Sublease Agreement between Equifax Inc. as Sublandlord and
Equifax Services Inc. as Subtenant for premises at 0000 Xxxxxxxxx Xxxxxx,
Xxxxxxx, Georgia]
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and
seals, the day and year first above written.
SUBLANDLORD:
EQUIFAX INC., A GEORGIA CORPORATION
By:
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Name:
-----------------------------------
Title:
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Attest:
---------------------------------
Name:
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Title:
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[CORPORATE SEAL]
(Signatures Continued on Next Page)
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[Signature Page to Sublease Agreement between Equifax Inc. as Sublandlord and
Equifax Services Inc. as Subtenant for premises at 0000 Xxxxxxxxx Xxxxxx,
Xxxxxxx, Georgia]
SUBTENANT:
EQUIFAX
SERVICES INC., a Georgia
corporation
By:
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Name:
-----------------------------------
Title:
----------------------------------
Attest:
---------------------------------
Name:
----------------------------------
Title:
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[CORPORATE SEAL]
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