Common use of Network Operator Clause in Contracts

Network Operator. Network Operator represents, warrants, and covenants that, as of the Effective Date and continuing throughout the Term of this Agreement: 6.1.1 It is a [ ], validly existing and is in good standing under the Laws of the Commonwealth of Massachusetts and has paid all applicable federal, state, and local taxes and assessments, and is in good standing in each other jurisdiction where the failure to be in good standing would have a material adverse effect on its business or its ability to perform its obligations under this Agreement. 6.1.2 It has all requisite corporate power and authority to enter into, and fully perform in accordance with the terms of the Agreement; and the execution, delivery and performance of the Agreement contemplated hereby have been duly and properly authorized by all requisite corporate action. 6.1.3 This Agreement constitutes a legal, valid, and binding obligation of such Party, and its Affiliates, enforceable against it in accordance with its terms. 6.1.4 The execution, delivery and performance of this Agreement will not constitute (i) a violation of its articles of incorporation or bylaws or any judgment, order, or decree; (ii) a material default under any material contract by which it or any of its material assets are bound; or (iii) an event that would, with notice or lapse of time, or both, constitute such a default as described in (ii). 6.1.5 At all times since July 1, 2017, (i) Network Operator and its Affiliates, have been solvent and have conducted their business in the ordinary course, (ii) neither Network Operator or its Affiliates has filed nor had filed against it a petition in bankruptcy or for an arrangement or reorganization under the U.S. bankruptcy code or any similar law of any jurisdiction, and (iii) neither Network Operator, nor any of their respective officers, directors or Affiliates has been subject to any criminal proceeding or investigation, nor has any such proceeding or investigation been threatened against Network Operator, its parent company or any of its officers, directors or Affiliates. 6.1.6 It has, and during the Term will have, and each of the employees and subcontractors that it will use to provide and perform the Services has, and during the Term will have, the necessary knowledge, skills, experience, qualifications, rights, and resources to provide and perform the Services in accordance with the Agreement. 6.1.7 It has successfully provided and performed the Services or services that are substantially equivalent to the Services in other settings and circumstances, and has maintained compliance since July 1, 2017, with all laws, orders including court orders, and regulatory requirements applicable to the performance of such Services or services. 6.1.8 Consistent with the obligations of the Network Operator set forth in ARTICLE 4 of this Agreement, the Services will be performed in a diligent manner in accordance with or exceeding generally accepted Industry Standards applicable to the performance of such services. 6.1.9 It is experienced and knowledgeable about federal and Commonwealth communications laws and regulatory requirements applicable to the operation of the MassTech Network and the Services to be provided by the MassTech Network, and has and will utilize throughout the Term employees and subcontractors experienced in complying with such regulatory requirements. 6.1.10 It will perform its responsibilities under this Agreement in a manner that does not infringe, or constitute an infringement or misappropriation of, any patent, trade secret, copyright, or other proprietary right of any third party. 6.1.11 There is no claim, litigation or proceeding pending or (to the best of its knowledge) threatened against Network Operator or its Affiliates that Network Operator has not disclosed to MassTech or its designee prior to the Effective Date, including but not limited to any claim, litigation or proceeding with respect to the Services to be provided under this Agreement alleging infringement, misappropriation or violation of any patent, trade secret, copyright or other proprietary right of any third party. 6.1.12 At its cost and expense, it has obtained (or will obtain when necessary to perform the services hereunder) and will maintain all necessary licenses, permits, franchises and regulatory approvals applicable to its business and the performance of the Services hereunder and the operation of the MassTech Network. 6.1.13 It is and will be in compliance with all laws, orders including court orders, and regulatory requirements applicable to the performance of its obligations under this Agreement. 6.1.14 It shall timely and diligently cooperate to effect the goals, objectives, and purposes of this Agreement and to facilitate the performance of the respective duties and obligations of the Parties under this Agreement in a Commercially Reasonable manner. 6.1.15 It acknowledges and accepts that as the Network Operator of the MassTech Network, it has a responsibility to ensure that the interests of MassTech as owner of the MassTech Network are protected in all transactions involving third parties that relate to the MassTech Network and agrees that it shall engage in no transaction relating to the MassTech Network that would constitute self-dealing, any such self-dealing shall constitute a material default of this Agreement. Nor shall Network Operator assist or allow any Affiliates to obtain any undue financial advantage from the Network Operator’s unique role as the MassTech Network Operator. Prior to employing or utilizing any Affiliates to perform any work under this Agreement, the Network Operator shall provide advance written notice to MassTech. 6.1.16 Network Operator has heretofore made available to MassTech its consolidated balance sheet and statements of income, stockholders equity and cash flows with respect to Network Operator and all Affiliates, as of and for the fiscal year ended December 31, 2021, audited by and accompanied by the opinion of [ ], independent public accountants, and its unaudited consolidated balance sheet and related statements of income, stockholder’s equity and cash flows as of t September 30, 2022. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of Network Operator and its consolidated Affiliates, as of such date and for such period in accordance with GAAP, in the case of the unaudited statements subject to normal year-end audit adjustments and the absence of footnotes. Such balance sheets and the notes thereto disclose all material liabilities, direct or contingent, of Network Operator and its Affiliates as of the date thereof 6.1.17 It shall comply with the requirements for contractors and subcontractors set forth in ARTICLE 5 of the Master Services Agreement between MassTech and EOPSS and EOTSS. 6.1.18 The Network Operator shall secure all insurance required under this Agreement pursuant to ARTICLE 10, which shall be timely procured, and has not done or omitted to do or suffered anything to be done or not to be done which has rendered or would in the ordinary course of business render any such insurance void or voidable. 6.1.19 As of the Commencement Date, the Network Operator will operate the MassTech Network, and ensure that throughout the Term the MassTech Network complies with all Network Policies, Applicable Laws, regulations, and orders, including administrative and court orders, and all regulatory requirements applicable to the performance of its obligations under this Agreement and the operation of the MassTech Network. 6.1.20 The Network Operator covenants not to take or fail to take any action that would result in the designation of the MassTech Network or MassTech as a Common Carrier or in the application of Common Carrier Regulations to the MassTech Network or MassTech. The Network Operator acknowledges and agrees that the performance by Network Operator of the Services and obligations under this Agreement does not require the MassTech Network or MassTech to be regulated as a Common Carrier and such obligations are not intended to constitute Common Carriage under Applicable Laws. 6.1.21 Network Operator, including any Affiliate or permitted assigns, (i) is not, nor is it acting as an agent, representative, intermediary or nominee for, a person identified on the list of Specially Designated Nationals and Blocked Persons maintained by the Office of Foreign Assets Control, U.S. Department of Treasury; and (ii) has complied with all applicable United States laws, regulations, directives, and executive orders imposing economic sanctions, export controls or anti-money laundering requirements 6.1.22 Network Operator agrees that it will notify MassTech immediately in writing of the occurrence of any event which renders the foregoing warranties and representations incorrect.

Network Operator. Network Operator represents, warrants, represents warrants and covenants that, as of the Effective Date and continuing throughout the Term of this Agreement:. 6.1.1 5.1.1 It is a [ ]municipal light plant, validly existing and is in good standing under the Laws of the Commonwealth of Massachusetts and has paid all applicable federal, state, and local taxes and assessments, and is in good standing in each other jurisdiction where the failure to be in good standing would have a material adverse effect on its business or its ability to perform its obligations under this AgreementMassachusetts. 6.1.2 5.1.2 It has all requisite corporate statutory power and authority to enter into, and fully perform in accordance with the terms of the Agreement; and the execution, delivery and performance of the Agreement contemplated hereby have been duly and properly authorized by all requisite corporate actionactions of the Network Operator. 6.1.3 5.1.3 This Agreement constitutes a legal, valid, valid and binding obligation of such Party, and its AffiliatesNetwork Operator, enforceable against it in accordance with its terms. 6.1.4 5.1.4 The execution, delivery and performance of this Agreement will not constitute (i) a violation of enabling legislation, its articles of incorporation or bylaws or any judgment, order, order or decree; (ii) a material default under any material contract by which it or any of its material assets are bound; or (iii) an event that would, with notice or lapse of time, or both, constitute such a default as described in (ii). 6.1.5 At all times since July 1, 2017, (i) 5.1.5 Neither Network Operator and its Affiliates, have been solvent and have conducted their business in the ordinary course, (ii) neither Network Operator or its Affiliates has filed nor had filed against it a petition in bankruptcy or for an arrangement or reorganization under the U.S. bankruptcy code or any similar law of any jurisdiction, and (iii) neither Network Operator, nor any of their its respective officers, directors or Affiliates has been subject to any criminal proceeding or investigation, nor has any such proceeding or investigation been threatened against Network Operator, its parent company or any of its officersemployees, directors agents; municipal light board members or Affiliates. 6.1.6 5.1.6 It has, and during the Term will have, and each of the employees and subcontractors that it will use to provide and perform the Services has, and during the Term will have, the necessary knowledge, skills, experience, qualifications, rights, rights and resources to provide and perform the Services in accordance with the Agreement.; 6.1.7 5.1.7 It has successfully provided and performed the Services or services that are substantially equivalent to the Services in other settings and circumstances, and has maintained compliance since July 1, 2017, with all laws, orders including court orders, and regulatory requirements applicable to the performance of such Services or services.; 6.1.8 5.1.8 Consistent with the obligations of the Network Operator set forth in ARTICLE 4 of under this Agreement, the Services will be performed in a diligent manner in accordance with or exceeding generally accepted Industry Standards industry standards applicable to the performance of such servicesServices. 6.1.9 It is experienced and knowledgeable about federal and Commonwealth communications laws and regulatory requirements applicable to the operation of the MassTech Network and the Services to be provided by the MassTech Network, and has and will utilize throughout the Term employees and subcontractors experienced in complying with such regulatory requirements. 6.1.10 5.1.9 It will perform its responsibilities under this Agreement in a manner that does not infringe, or constitute an infringement or misappropriation of, any patent, trade secret, copyright, copyright or other proprietary right of any third party. 6.1.11 5.1.10 There is no claim, litigation or proceeding pending or (to the best of its knowledge) threatened against Network Operator or its Affiliates that Network Operator has not disclosed to MassTech WW or its designee prior to the Effective Date, including but not limited to any claim, litigation or proceeding with respect to the Services to be provided under this Agreement alleging infringement, misappropriation or violation of any patent, trade secret, copyright or other proprietary right of any third party. 6.1.12 5.1.11 At its cost and expense, it has obtained (or will obtain when necessary to perform the services hereunder) and will maintain all necessary licenses, permits, franchises and regulatory approvals applicable to its business and the performance of the Services hereunder and the operation of the MassTech WW Network. 6.1.13 5.1.12 It is and will be in compliance with all laws, orders including court orders, and and. regulatory requirements applicable to the performance of its obligations under this Agreement. 6.1.14 5.1.13 It shall timely and diligently cooperate to effect affect the goals, objectives, and objectives and. purposes of this Agreement and to facilitate the performance of the respective duties and obligations of the Parties under this Agreement in a Commercially Reasonable commercially reasonable manner. 6.1.15 5.1.14 It acknowledges and accepts that as the Network Operator of the MassTech NetworkOperator, it has a responsibility to ensure take into account that the interests of MassTech as owner of the MassTech WW Network are protected in all transactions involving third parties that relate to the MassTech WW Network and agrees that it shall engage in no transaction relating to the MassTech WW Network that would constitute self-dealing, any such self-dealing shall constitute a material default of this Agreement. Nor shall Network Operator assist or allow any Affiliates to obtain any undue financial advantage from the Network Operator’s unique role as the MassTech Network Operator. Prior to employing or utilizing any Affiliates to perform any work under this Agreement, the Network Operator shall provide advance written notice to MassTech. 6.1.16 5.1.15 The Network Operator has heretofore made available to MassTech its consolidated balance sheet and statements of income, stockholders equity and cash flows with respect to Network Operator and all Affiliates, as of and for the fiscal year ended December 31, 2021, audited by and accompanied by the opinion of [ ], independent public accountants, and its unaudited consolidated balance sheet and related statements of income, stockholder’s equity and cash flows as of t September 30, 2022. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of Network Operator and its consolidated Affiliates, as of such date and for such period in accordance with GAAP, in the case of the unaudited statements subject to normal year-end audit adjustments and the absence of footnotes. Such balance sheets and the notes thereto disclose all material liabilities, direct or contingent, of Network Operator and its Affiliates as of the date thereof 6.1.17 It shall comply with the requirements for contractors and subcontractors set forth in ARTICLE 5 of the Master Services Agreement between MassTech and EOPSS and EOTSS. 6.1.18 The Network Operator shall secure taken out all insurance required under this Agreement pursuant to ARTICLE 10Agreement, except for any insurance that is not required at the Effective Date, which shall be timely procured, and has not done or omitted to do or suffered anything to be done or not to be done which has rendered or would in the ordinary course of business render any such insurance void or voidable. 6.1.19 As of the Commencement Date, the 5.1.16 The Network Operator will operate the MassTech WW Network, so that the WW Network is and ensure that throughout the Term the MassTech Network complies remains, in compliance with all Network Policies, Applicable Lawsapplicable laws, regulations, and orders, including administrative and court orders, and all regulatory requirements applicable to the performance of its obligations under this Agreement and the operation of the MassTech WW Network. 6.1.20 The Network Operator covenants not to take or fail to take any action that would result in the designation of the MassTech Network or MassTech as a Common Carrier or in the application of Common Carrier Regulations to the MassTech Network or MassTech. The Network Operator acknowledges and agrees that the performance by Network Operator of the Services and obligations under this Agreement does not require the MassTech Network or MassTech to be regulated as a Common Carrier and such obligations are not intended to constitute Common Carriage under Applicable Laws. 6.1.21 Network Operator, including any Affiliate or permitted assigns, (i) is not, nor is it acting as an agent, representative, intermediary or nominee for, a person identified on the list of Specially Designated Nationals and Blocked Persons maintained by the Office of Foreign Assets Control, U.S. Department of Treasury; and (ii) has complied with all applicable United States laws, regulations, directives, and executive orders imposing economic sanctions, export controls or anti-money laundering requirements 6.1.22 Network Operator agrees that it will notify MassTech WW immediately in writing of the occurrence of any event which renders the foregoing warranties and representations incorrect.