Supplementary Agreement to Lease of Premises in Beijing BDA Biomedical Park
Exhibit 10.9
Executed Version
Dated January 30, 2013
Supplementary Agreement to Lease of Premises
in Beijing BDA Biomedical Park
| Owner/Party A | Beijing Economic Technology Investment Development Parent Company, with its registered address at Building 61, Xx.0 Xxxxxxxx Xxxxx Xxxxxx, Xxxxxxx Xxxxxxxx-Xxxxxxxxxxxxx Xxxxxxxxxxx Xxxx, Xxxxxxx; | |
| Lessor/Party B | Beijing BDA International Biological Pharmaceutical Investment Management Co., Ltd., with its registered address at Xxxx 000, 0xx Xxxxx, Xxxxxxxxxxxxx Xxxxxxxx Xx. 0, Xxxx Xx.00, Xxxxxxxx 0 Xxxxxx, Xxxxxxx Economic-Technological Development Area, Beijing; and | |
| Lessee/Party C | Beijing FibroGen Medical Technology Development Co., Ltd., with its registered address at Room 503, 4th Floor, Building Xx.0, Xxxx Xx.00, Xxxxxxxx 0 Xxxxxx, Xxxxxxx Economic-Technological Development Area, Beijing. | |
Owner, Lessor and Lessee each referred as a “Party” and together as the “Parties”.
The Parties have entered into the Lease of Premises in Beijing BDA Biomedical Park (hereinafter referred to as “Contract”) in relation to the premises which are managed by Party B and intended to be rented by Party C. The Parties have agreed to supplement and amend certain terms of the Contract and its Appendix 1 - General Terms of the Lease (hereinafter referred to as “General Terms”) as follows:
| I. | Location and Area of the Premises |
The premises leased by Party C are located at Room 101-601, Xxxx 0, Xx.0 Xxxxxx-xxxxx Xxxxxxxxxx Xxxxxxxx, Xxxx Xx. 00, Xxxxxxxx 0 Xxxxxx, Xxxxxxx Economic-Technological Development Area, Beijing (Single Enterprise Villa A2: Room 101-601, hereinafter referred to as “Premises”) and will be used as Party C’s research and development space. The Premises shall be comprised of a single building with a total construction area of 4,819.76 square meters. (This clause is a replacement of Clause 1 of the Contract).
| II. | Term |
The term of the lease (hereinafter referred to as “Term”) shall commence on February 1, 2013 and end on January 31, 2021, with a period of 8 years, including a rent-free period of two months, commencing on February 1, 2013 and ending on March 31, 2013.
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| III. | Rent |
During the Term, the daily rent of the Premises shall be: 2.3 Yuan/square meter per day for the first and second payable year (i.e. from February 1, 2013 to January 31, 2015) including the rent-free period commencing from February 1, 2013 to March 31, 2013; 2.5 Yuan/square meter per day for the third and forth payable year (i.e. from February 1, 2015 to January 31, 2017) ; 3.0 Yuan/square meter per day from the fifth to the eighth payable year (i.e. from February 1, 2017 to January 31, 2021).
| IV. | Payment of Rent |
The rent of the Premises shall be paid quarterly in advance. Subject to Clause 7.3 of the General Terms (as amended), the first quarterly rent for the Premises (i.e. from February 1, 2013 and ending on April 30, 2013) in total shall be (in words): one million, eleven thousand, five hundred and forty eight Yuan (in numbers: ¥ 1,011,548.00). After deducting the rent free period, the actual payable rent shall be (in word) three hundred and fifty seven thousand, five hundred and three Yuan (in numbers: ¥ 357,503.00) which shall be paid within seven (7) Calendar Days after the expiry of the rent-free period. The rest of the rent for the Term of the Premises shall be paid by Party C to Party B within seven (7) Calendar Days after the beginning of every payable quarter.
| V. | Lease Deposit |
Within seven (7) Calendar Days after this Supplementary Agreement becomes effective, Party C shall pay the security deposit (hereinafter referred to as “Deposit”), equivalent to three (3) months of rent for the entire Premises. The specific amount of the Deposit is: (in words) one million, eleven thousand, five hundred and forty eight Yuan (in numbers: ¥ 1,011,548.00) and shall be adjusted during the Term in proportion to the increase of the Rent. If Party B is required to return the Deposit to Party C under the provisions of Clause 7.3 of the General Terms, the Deposit shall be returned to Party C by Party B within fifteen (15) Calendar Days after the return of the Premises by Party C. It is expressly understood that Party B reserves the right to deduct unpaid rent, payments sufficient to cover damages to the Premises and other charges provided under the Contract and General Terms from the Deposit prior to its return to Party C. (This clause is a supplement to Clause 6 of the Contract and Clause 7.3 of the General Terms.)
| VI. | Delivery of the Premises |
| 1. | Within ten (10) Calendar Days after signing this Supplementary Agreement by the Parties, Party B shall deliver the Premises to Party C in compliance with the delivery |
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| conditions (hereinafter referred to as “Delivery Day”). The Delivery Day shall not be later than the commencement date of the Term. On the Delivery Day, the Parties shall complete the delivery and execute relevant documents in relation to the delivery of the Premises. |
| 2. | After the date of execution of this Supplementary Agreement and before the Delivery Day, Party C shall be entitled to check on its own or authorize representatives to check the Premises and the ancillary equipments and facilities thereof, upon giving a prior notice to Party B, to ensure that the delivery conditions, specifications and standard of the Premises have met the delivery conditions (hereinafter referred to as “Delivery Conditions”) as specified in the appendix of this Contract, for once or more times. Party B shall make the Premises accessible to Party C and its representatives for the on-site inspection, acceptance check and other related procedures. |
| 3. | The Delivery Conditions shall refer to those items specified both in the Appendix 3 - List of Ancillary Facilities and Articles of the Premises and the Specifications of the Premises (Appendix A attached to this Supplementary Agreement) as agreed by the Parties. |
| 4. | Party B represents and warrants that the Premises were constructed in full compliance with all national, city, and local codes and regulations. In particular, Party B confirms that the Premises were constructed without the use of asbestos and are asbestos-free at the time of delivery. In addition, Party B confirms that the Premises were constructed in compliance with all current national, city, and local codes and regulations that related to earthquake construction standards. (Clause 6.1-Clause 6.4 hereof are supplements to Clause 9 of the Contract). |
| VII. | Renovation and Improvement of the Premises |
| 1. | Party C shall submit a written application to Party B for its approval at least ten (10) Working Days prior to the proposed renovation and improvement, with a detailed statement (including but not limited to the renovation and improvement plan, construction drawings, construction period arrangement, and plan for installation or removal of equipment and facilities). |
| 2. | Party B shall not unreasonably refuse the renovation and re-construction requests or plans proposed by Party C. Party B shall notify Party C, within ten (10) Working Days after receiving the renovation and re-construction application and related statements, of its decision on whether it consents to the renovation and re-construction request and such consent shall be deemed to be given to Party C upon failure of Party B to notify Party C of such decision within the aforementioned time limit. Party B shall advise Party C in writing at the time of Party B’s approval of such renovation and re-construction request if Party B will require Party C to remove the improvement upon termination of this Contract. Where the proposed renovation and re-construction proposed by Party C is subject to relevant administrative permits, Party B and the |
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| property management company shall be obligated to assist Party C to obtain all approvals from relevant administrative authorities. |
| VIII. | Naming of the Premises |
If Party C leases the entire building of the Premises, Party C shall have the right to name the Premises free of charge during the Term, including installing and placing signage and logos of Party C and affiliates of Party C on the places as designated by Party B. Party C shall bear the cost of design, installation and maintenance of these signage and logos and removal of these signage and logos upon expiry of the Term. (This clause is a replacement of Clause 4.3 of the General Terms.)
| IX. | Renewal of the Lease |
Upon expiration of the Term, in the event that Party C intends to continue to rent the Premises, it shall submit a written application for renewal to Party B at least forty five (45) Calendar Days prior to the expiration of the Term. If a third party has expressed interest in leasing the Premises, Party C shall be entitled to a right of first refusal to renew the Contract on a term no less than one (1) year at a rental rate no more than that agreed by the third party. In the event that Party C has submitted a written application for renewal to Party B and no third party has expressed interest in leasing the Premises, Party C shall be entitled to renew the lease on a term no less than one (1) year at a rental rate to be agreed upon between Party B and Party C, but in no case will the rental rate exceed the fair market value of similar premises in this area. (This clause is a replacement of Clause 5.2 of the General Terms)
| X. | Return of the Premises |
| 1. | Party C shall return the Premises in five (5) Calendar Days upon the date of expiration of the Term or termination of the Contract. Party C shall organize all relevant persons to withdraw from the Premises within the above period. Party C shall evacuate or remove the equipments, facilities, appliances and other properties which are owned or leased by Party C from third parties and which Party B identified as being required to be removed upon approval of the installation of such equipments, facilities, appliances and other properties. Party C need not reinstate the Premises, provided that the renovation and improvement furnished by Party C does not materially damage the functionality of the Premises. The Parties agree to extend the five-day-period to a reasonable period of time if Party C is required to demolish the renovation and improvement to the Premises. |
| 2. | It is expressly understood that title of all improvements made and equipments provided by Party C shall, at all times during the Term, remain in the name of Party C. Notwithstanding anything to the contrary contained herein, Party C may remove all or any of the improvements and equipments at any time during the Term, provided that such removal of the improvements and equipments by Party C will not damage the |
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| structure of the Premises. Party C provides no representation or warranty relating to the condition or functionality of any improvement or equipment left in the Premises after the expiration of the Term. (Clause 10.1-Clause10.2 are replacements of Clause 10.1 and Clause 10.4 of the General Terms) |
| 3. | Provided that Party C remains in possession of the Premises for less than ninety (90) Calendar Days (the ninetieth day included) after the expiration of the five (5) Calendar Days period or any period extended by the agreement of the Parties specified in Clause 10.1, Party C shall be entitled to use of the Premises under the same terms and conditions of the Contract, yet the daily rent during the foregoing period extended by the agreement of the Parties and the occupation period within ninety Calendar Days shall be twice the last daily rent being carried out during the Term. (This Clause is a supplement to Clause 10 of the General Terms) |
| 4. | In the event that Party C fails to return the Premises beyond ninety (90) Calendar Days after the expiration of the five (5) Calendar Days period or any period extended by the agreement of the Parties specified in this Clause 10.1, Party B is entitled to: (This Clause is a replacement of Clause 10.5 and Clause 10.6 of the General Terms) |
| (1) | Dispose properties, equipments and facilities (including the properties, equipments and facilities left by the affiliated third party) which were left in the Premises without the consent of Party B at its discretion and which Party B identified as being required to be removed upon approval of the installation of such equipments, facilities, appliances and other properties. Party C shall not claim any right or expenses against Party B due to the disposal, and, in case any claim, penalty, expenditure or losses is caused to Party B due to the disposal, Party C shall compensate Party B for those improvements that Party B required removal at the time of approval of the installation of those improvements. Meanwhile, Party B is entitled to require Party C to assume the liability for breach of the Contract in accordance with the provisions of this Contract ; and |
| (2) | Cut off the supply of water, electricity, gas, heating and other energy at its own discretion, and is entitled to change the keys to the Premises and prohibit Party C and its affiliated third party from entering into the Premises. Party B is also entitled to remove or eliminate the renovations to the Premises and the properties, equipments and facilities left by Party C and its affiliated third party. Party C shall not raise any claim against Party B at any time in this regard for any loss nor require Party B to be liable for any compensation or indemnification. |
| XI. | The Repair and Maintenance of the Premises and its Ancillary Facilities |
| 1. | The Parties further agree and acknowledge that the maintenance of the Premises and the ancillary equipments (hereinafter referred to as “Equipments”) and facilities (hereinafter referred to as “Facilities”) listed in the Appendix [3] of this Supplementary Agreement shall be repaired and maintained by Party B free of charge |
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| unless such damage or failure is caused by Party C. In the event of damage to, or failure of, the Premises, Equipments, or Facilities not caused by Party C, Party C shall notify Party B in a reasonable time period after Party C has noticed of such damage or failure. Party B shall promptly repair such damage or failure of the Premises, Equipments and Facilities. Party C may furnish such repair and maintenance at the expenses of Party B if Party B does not furnish the repair within three Working Days after receiving notice from Party C. (This Clause is a replacement of Clause 13.2 of the General Terms) |
| 2. | During the Term, Party C shall be entitled to continuously and uninterruptedly use the Premises 24 hours a day. Party B and the property management company shall not interrupt or disturb the use of the Premises by Party C without any sound reason or any advance notice, provided that Party C operates its business and manufacture in compliance with laws and regulations and the Tenant’s Manual of the Park. (This Clause is a supplement to Clause 11 of the General Terms) |
| 3. | If Party B or the property management company deems it necessary to enter into the Premises to inspect, maintain or renovate the pipes of water, electric wires, steam pipes, telecommunication cables, and other public facilities, passing through the Premises, Party B shall notify Party C of such on the same day Party B is notified, and the personnel appointed by Party B or the property management company shall not interrupt or disturb the use of the Premises by Party C, who shall provide necessary assistance. In case of emergency (including but not limited to flood, fire and robbery) Party B may enter into the Premises to handle the accidents and temporarily stop the operation of any facility for emergency maintenance, without notifying Party C in advance. (This Clause is a replacement of Clause 13.4 of the General Terms) |
| XII. | Use of the Premises |
| 1. | During the Term, without Party B’s prior written consent, Party C shall neither sublease the Premises herein, in whole or in part, to others, nor make the Premises actually available for the actual use by any third party, through any paid or unpaid means, such as transfer, lending, or subcontract. The restriction of sublease and transfer herein is not applicable to any affiliate of Party C. “Affiliate of Party C” shall refer to the parent company of Party C, companies controlled by Party C’s parent company other than Party C, and any subsidiary, branch and representative office of Party C. Party C will provide evidences to Party B indicating the affiliated relationship between Party C and such third parties. (This Clause is a replacement of Clause 14.1 of the General Terms) |
| 2. | The Parties agree to delete “and the Consent of Party B” from the first sentence of Clause 11.5 of the General Terms: “Without the qualification certificate of the relevant administration authorities of the State and the consent of Party B”. |
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| XIII. | Termination of the Contract |
| 1. | Under any of the following circumstances, Party C shall be entitled to unilaterally terminate the Contract and immediately cease to pay the Rent (exclusive of the delinquent Rent): (This Clause is a replacement of Clause 15.3 of the General Terms) |
(1) Party B delays to deliver the Premises or fails to deliver the Premises in compliance with Delivery Conditions, and such delay or failure is more than thirty (30) Calendar Days (the thirtieth day included);
(2) During the Term, if the Premises is damaged, is unable to meet Party C’s intended purposes, or the normal use by Party C is seriously affected, without cause attributable to Party C, and Party B fails to cure such condition within 30 calendar days upon Party C’s written notice, then Party C shall be entitled to immediately and unilaterally terminate the Contract. Or if, during the Term, the circumstances that the Premises is damaged, unable to meet Party C’s intended purposes of use, or its normal use by Party C is seriously affected, cause attributable to Party C, takes place for three or more times during any consecutive 12 calendar months, Party C shall be entitled to immediately and unilaterally terminate the Contract;
(3) During the Term, if the Premises seriously endanger the safety or health of Party C due to reasons not caused by Party C, and Party B fails to cure within 30 Calendar Days upon Party C’s written notice, then Party C may immediately and unilaterally terminate the Contract. Or if, during the Term, the circumstance that the Premises seriously endanger the safety or health of Party C due to reasons not caused by Party C, takes place for three or more times during any consecutive 12 calendar months, Party C may also immediately and unilaterally Terminate the Contract; and
(4) The Premises is condemned or taken by the government during the Term.
| 2. | Under any of the following circumstances, Party B shall be entitled to unilaterally terminate the Contract (This Clause is a replacement of Clause 15.4 of the General Terms.): |
(1) Party C delays to pay the Rent or other fees and expenses assumed by Party C subject to the Contract and such delay is longer than thirty (30) Calendar Days after Party B’s notice (the thirtieth day included);
(2) Party C subleases, transfers or lends the Premises to any party other than those listed in Clause 10 of this Supplementary Agreement without Party B’s consent, and fails to cure within 30 days after Party B’s notice;
(3) Party C changes the purpose of the Premises without Party B’s consent and fails to cure within 30 days after Party B’s notice;
(4) Party C dismantles, changes or damages the main structure of the Premises, without Party B’s consent and fails to cure within 30 days after Party B’s notice;
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(5) Party C seriously violates Clause 11.2 of Appendix 1 of the Contract and fails to cure within 30 days after Party B’s notice;
(6) Party C seriously violates the regulations of the Park as set out in the Appendix 7 to the Contract, and fails to cure within 30 days after Party B’s notice.
| 3. | In the event of termination of Party C’s clinical trial program, Party C shall be entitled to terminate the Contract by providing a notice 6 months in advance to Party B during which time Party B is allowed to market the space immediately. (This Clause is a supplement to Clause 15.3 of the updated General Terms as replaced by Clause 13.1 hereof) |
| XIV. | Fire Code Permit |
Party C shall have the right to petition the local Fire Department to upgrade the Premises to a Fire Code Class C Permit. Party B shall assist Party C in obtaining the Fire Code Class C Permit as required. In the event that a Fire Code Class C Permit is not obtained for the Premises within 60 days of Party C’s request and Party C has not made any renovation or improvement to the Premises that would render the building not qualified for a Fire Code Class C Permit, Party C shall have the right to terminate the Contract immediately and Party B will have all prepaid rent and Deposit paid to date refunded to Party C within 30 days of the date of termination. (This clause is a supplement to Clause 20 of General Terms and shall constitute a new Clause 20.9 of the General Terms)
| XV. | Insurance |
| 1. | Prior to the execution date of the Contract and this Supplemental Agreement, Party B will purchase sufficient insurance policies against any loss incurred in connection with the Premises and facilities and equipments furnished by Party B and maintain such insurance policy valid during the Term. The photocopies of the insurance policies will be made available to Party C before the execution date of the Contract and this Supplemental Agreement and annually thereafter. |
| 2. | Notwithstanding anything to the contrary provided in the Contract or General Terms, if the Premises are damaged and Party B receives any insurance proceed from an insurer, Party B shall repair the Premises as soon as practical and ensure that the repaired Premises are able to meet the Delivery Conditions prescribed in Clause 4.3 of this Supplementary Agreement, unless such damage to the Premises is caused by Party C. If the damage to the Premises is not repairable, Party B shall, on the same terms of the Contract, lease an alternative premise, which is acceptable to Party C, to Party C within 30 days after damage to the Premise occurs. |
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| XVI. | Liabilities for Breach |
The Parties agree to delete “If failure of payment continues for more than thirty (30) (including) calendar days, Party B is entitled to terminate this Contract” from Clause 16.2 of the General Terms.
| XVII. | Governing Law and Dispute Resolution |
The execution, effect, construction, and performance of and any dispute arising out of and related to this Contract and this Supplementary Agreement shall be governed by PRC law. Any issues, disputes, and disagreement between the Parties arising out of the execution and performance of this Contract and this Supplementary Agreement shall be firstly resolved through consultation. If no agreement can be reached upon consultation within thirty (30) days, such dispute shall be brought to China International Economic and Trade Arbitration Commission (“CIETAC”) for final arbitration by one (1) arbitrator in Beijing according to the then-effect arbitration rules of CIETAC. The Parties shall jointly appoint or delegate the Chairman of CIETAC to appoint the arbitrator from the Panel of Arbitrators provided by CIETAC. Where the Parties fail to agree on the appointment of the arbitrator within 20 days after the date of the Respondent’s receipt of the Notice of Arbitration the arbitrator shall be appointed by the Chairman of CIETAC. Any arbitration award shall be final, binding to the Parties, and enforceable according to the provisions of the arbitration rules. (This Clause is a replacement of Clause 19 of the General Terms.)
| XVIII. | Deleted Terms |
Clause 11.6 regarding “Party C shall abide by the regulations regarding the management of the environmental noise for residential areas”, Clause 16.3 regarding “Party B may early withdraw the Premises if notifies Party C thirty (30) days in advance”, Clause 16.4 regarding “Party C may cease to lease the Premises if notifies Party B thirty (30) days in advance” in the General Terms shall be deleted.
| XIX. | Effectiveness of this Supplementary Agreement |
| 1. | Unless otherwise defined herein, all terms in this Supplementary Agreement (including preface) shall have the meaning ascribed to them in the Contract and the Appendix 1-General Terms. If there is any discrepancy between this Supplementary Agreement and the documents constituting the lease specified in Clause 7 of the Contract, this Supplementary Agreement shall prevail. For any matters not provided in this Supplemental Agreement, the provisions of the Contract and the General Terms will prevail. |
| 2. | This Supplementary Agreement shall take effect upon that the signature of the legal representatives or the authorized representatives of the Parties and company seals are affixed to this Supplementary Agreement. |
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SIGNATURE:
Party A: (seal) Beijing Economic Technology Investment Development Parent Company
| Party B: (Seal)
Beijing BDA International Biological Pharmaceutical Investment Management Co., Ltd. |
Party C: (Seal)
Beijing FibroGen Medical Technology Development Co., Ltd. | |||||||||||
| Legal Representative: | /s/ Yin Xijie |
(Signature) | Legal Representative: | /s/ Xxxxxx X. Xxxx |
(Signature) | |||||||
| Legal Representative: Yin Xijie | Legal Representative: | Xxxxxx X. Xxxx |
(Print) | |||||||||
| Date: January 30, 2013 | Date: January 30, 2013 | |||||||||||
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Appendix A - Specifications of the Premises
| 1 | The Premises to be rented is a five storey building above ground which will be used for office and laboratory purpose. |
| 2 | This building is comprised by frame structure. Structure seismic grade: frame: second grade, shear wall: first grade, second basement wall column: third grade. |
| 3 | Floor slab is made of cast-in-place reinforced concrete. |
| 4 | Due to the difference of China’s architectural design standards, vibration standard is not taken into the structure design of this building. |
| 5 | The distance between the floors of 1F to 4F is 4.5m. The distance between the floors of 5F is 5.5m. |
| 6 | The designed floor slab load of this building is: working floor surface: 4.0KN/m2, bathroom floor surface 2.5KN/m2, air conditioning plant room floor surface 7.0KN/m2. |
| 7 | The load of flat roof: accessible flat roof 2.0KN/m2. |
| 8 | The land type of this building is industrial use pursuant to the State Owned Land Use Right Certificate and the Construction Land Planning Permit. The property type column in the Property Ownership Certificate is blank and one of the planned utility is defined as enterprise use. |
| 9 | The specifications and standards adopted in the design of this building are all current in force national GB series construction industry standards. |
| 10 | The out wall of this building is local glass curtain wall (6+12+6 insulating glass broken bridge aluminum alloy windows), local aerated concrete masonry and dry handing plate of ceramic curtain wall. |
| 11 | The entrance door of this building is insulation glass vertical hinged door (6+12+6 insulating glass broken bridge aluminum alloy door). |
| 12 | All of the outside and roof balcony door are insulation glass doors and windows (6+12+6 insulating glass broken bridge aluminum alloy doors and windows). |
| 13 | The parapet wall on the roof is aerated concrete masonry with construction columns. |
| 14 | The elevator hoistways, elevator lifts and staircase partition wall are all made of aerated concrete masonry with fire resisting grade. |
| 15 | Staircases are located at the two ends of the building and are made of cast-in-place reinforced concrete stairs. |
| 16 | The fresh air units are installed in an equipment room adjacent to the terrace of 5F. The air cooling units are installed to a concrete equipment base on the roof of the elevator machine room and the equipments are independently controlled by each of the independent building. |
| 17 | The flat roof uses double SBS polymer modified asphalt waterproofing materials with ceramist concrete sloping layer and ground tile. |
| 18 | The inner building elevators are furnished with stainless steel door case and door. |
| 19 | The automatic fire hydrant system and sprinkler are satisfactory to the fire hydrant grade requirements. |
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| 20 | The fire alarm system and equipment are connected by the vertical shaft for light current at one end of the building with the central control room of the park. |
| 21 | The inlet wire of the park’s power supply system is 10 KV which will supply electricity (400v) to the building through the transformer of the transforming satiation, distribution box and respective distribution system of the park. |
| 22 | Each floor is equipped with emergency illumination and evacuation indicator. |
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