42. Use of Premises 



 Tenant covenants that Tenant shall use and occupy the Premises solely as a first class high quality café, coffee shop, and restaurant with full table service for all day breakfast, lunch and dinner and other uses incidental thereto, including the sale of liquor with the required license, and for no other purpose unless approved in writing by Landlord at all times. Tenant shall not have the right to operate its business in the Premises except between the hours of 7:00 A.M. through 2:00 A.M. 



 Tenant shall not knowingly use or occupy or permit the Premises to be used or occupied, nor do or permit anything to be done in or on the Premises, in any manner which in any way will violate any rules and regulations of governmental authorities, any certificate of occupancy affecting the Premises, or make void or voidable any insurance then in force with respect to the Premises. In the event that any governmental authority shall contend or declare by notice of violation or order, or otherwise, that the Premises are being used in a manner in violation of any law, rule or regulation or in violation of any certificate of occupancy, Tenant, within ten days after written notice shall discontinue such use of the Premises, and failure to discontinue such use shall constitute a material default by Tenant hereunder. The statement in this Lease of the nature of Tenant's business shall not be deemed or construed to constitute a representation or warranty by Landlord that such business may be conducted in the Premises or is lawful or permissible under any certificate of occupancy issued for the building. 



 Tenant shall as its sole responsibility, and at Tenant's sole cost and expense, take all action, including making any required alterations necessary to comply with all Requirements (including, but not limited to, applicable terms of the Americans With Disabilities Act of 1990 (the "ADA"), as modified and supplemented from time to time, which shall impose any violation, order or duty upon Landlord or Tenant arising from, or in connection with, the Premises, Tenant's occupancy, use or manner of use of the Premises (including, without limitation, any occupancy, use or manner of use that constitutes a "place of public accommodation" under the ADA), or any installations in the Premises, or required by reason of a breach of any of Tenant's covenants or agreements under this Lease, whether or not such Requirements shall now be in effect or hereafter enacted or issued, and whether or not any work required shall be ordinary or extraordinary or foreseen or unforeseen at the date hereof. 





 Tenant covenants and agrees that Tenant shall, as its sole responsibility, and at Tenant's sole cost and expense, comply at all times with all Requirements governing the use, generation, storage, treatment and/or disposal of any "Hazardous Materials" (as defined below), the presence of which results from or in connection with the act or omission of Tenant or Persons Within Tenant's Control or the breach of this Lease by Tenant or Persons Within Tenant's Control. The term Hazardous Materials shall mean any biologically or chemically active or other toxic or hazardous wastes, pollutants or substances, including, without limitation, asbestos, PCBs, petroleum products and by-products, substances defined or listed as "hazardous substances" or "toxic substances" or similarly identified in or pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq., and as hazardous wastes under the Resource Conservation and Recovery Act, 42 U.S.C. 6010 et seq., any chemical substance or mixture regulated under the Toxic Substance Control Act of 1976, as amended, 15 U.S.C. 2601, et seq., any "toxic pollutant" under the Clean Water Act, 33 U.S.C. §466 et seq., as amended, any hazardous air pollutant under the Clean Air Act, 42 U.S.C. 7401 et seq., hazardous materials identified in or pursuant to the Hazardous Materials Transportation Act, 49 U.S.C. §1802, et seq., and any hazardous or toxic substances or pollutant regulated under any other Requirements. Tenant shall agree to execute, from time to time, at Landlord's request, affidavits, representations and the like concerning Tenant's best knowledge and belief regarding the presence of Hazardous Materials in, on, under or about the demised Premises or the Building. Tenant shall indemnify and hold harmless all Indemnitees from and against any loss, cost, damage, liability or expense (including attorneys' fees and disbursements) arising by reason of any clean up, removal, remediation, detoxification action or any other activity required or recommended of any Indemnities by any Governmental Authority by reason of the presence in or about the Building or the demised Premises of any Hazardous Materials, as a result of or in connection with the act or omission of Tenant or Persons within Tenant's Control or the breach of this Lease by Tenant or Persons within Tenant's Control. The foregoing covenants and indemnity shall survive the expiration or any termination of this Lease. 



 If Tenant shall receive notice of any violation of, or defaults under, any Requirements, liens or other encumbrances applicable to the Premises, Tenant shall give prompt notice thereof to Landlord. 



 Tenant shall, as its sole responsibility, and at Tenant's sole cost and expense, make application for, diligently seek the issuance of, and promptly procure and thereafter maintain, any necessary licenses and permits required in respect of the operation and use of the Premises and Tenant's use thereof and Tenant shall cause all such licenses and permits to remain in full force and effect throughout the term of this Lease or until no longer required and submit same for inspection by Landlord, and at all times comply with the terms and conditions of each such license or permit. Landlord shall cooperate with Tenant’s applications for such licenses or permits. 



 Tenant, at Tenant's sole cost and expense and after notice to Landlord, may contest, by appropriate proceedings prosecuted diligently and in good faith, the legality or applicability of any Requirement affecting the Premises provided that: (a) neither Landlord nor any Indemnities shall be subject to criminal penalties, nor shall the Building or any part thereof be subject to being condemned or vacated, nor shall the certificate of occupancy for the Premises or the Building be suspended or threatened to be suspended, by reason of non-compliance or by reason of such contest; (b) before the commencement of such contest, if Landlord or any Indemnities may be subject to any civil fines or penalties or if Landlord may be liable to any third party as a result of such non-compliance, then Tenant, shall furnish to Landlord either (i) a bond of a surety company satisfactory to Landlord, in form and substance reasonably satisfactory to Landlord, and in an amount at least equal to Landlord's estimate of the sum of (A) the cost of such compliance, (B) the penalties or fines that may accrue by reason of such non-compliance (as reasonably estimated by Landlord) and (C) the amount of such liability to independent third parties, and shall indemnify Landlord (and any Indemnities) against the cost of such compliance and liability resulting from or incurred in connection with such contest or non-compliance; or (ii) other security satisfactory in all respects to Landlord; (c) such non-compliance or contest shall not constitute or result in a violation (either with the giving of notice or the passage of time or both) of the terms of any mortgage or superior Lease affecting the Building, or if such superior Lease or mortgage conditions such non- compliance or contest upon the taking of action or furnishing of security by Landlord, such action shall be 





 taken or such security shall be furnished at the expense of Tenant; and (d) Tenant shall keep Landlord regularly advised as to the status at such proceedings. 



 For the purposes of this Article, and elsewhere in this Lease, (i) the term "Persons Within Tenant's Control" shall mean and include Tenant, all of Tenant's respective principals, officers, agents, contractors, servants, employees, licensees and invitees; (ii) the term "Requirements" shall mean all present and future laws, ordinances, requirements, orders, directives, rules and regulations of federal, state, county and city governments and of all other governmental authorities having or claiming jurisdiction over the Real Property relating solely to the Premises; (iii) the term "Indemnitees" shall mean Landlord, its trustees, partners, shareholders, officers, directors, employees, agents and contractors and the managing agent, if any (and the partners, shareholders, officers, directors and employees and contractors of such managing agent), of Landlord; and (v) the term "Governmental Authority" shall mean The United States of America, the City and State of New York, the County of New York, any political subdivision thereof and any agency, department, commission, board, bureau or instrumentality of any of the foregoing, now existing or hereafter created, having jurisdiction over the Building, the Real Property, or any portion thereof. 



 Tenant covenants and agrees, at its sole cost and expense, to comply with all present and future Requirements regarding the collection, sorting, separation, and recycling of waste products, garbage, refuse and trash. Tenant shall sort and separate such waste products, garbage, refuse and trash into such categories as provided by law. Each separately sorted category of waste products, garbage, refuse and trash shall be placed in separate receptacles reasonably approved by Landlord and/or the Controlling Governmental agency(ies). Such separate receptacles may, at Landlord's option, be removed from the demised Premises in accordance with a collection schedule prescribed by law. 



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Section label: Tenant Covenants for Premises Use