Common use of Certain Losses Included or Excluded Clause in Contracts

Certain Losses Included or Excluded. (1) Back to Back Claims by Participants Against BNPPLC. Losses for which BNPPLC is entitled to be indemnified as described in subparagraph 10(A) will include claims made against BNPPLC by any Participant, and amounts (if any) reimbursed by BNPPLC to any Participant, because of the following: (a) Losses suffered or incurred by such Participant, directly or indirectly, relating to or arising out of any of the following which occurs or is alleged to have occurred prior to any Termination of NAI’s Work: (i) any Hazardous Substance Activity; (ii) any violation of any applicable Environmental Laws relating to the Land or the Property or to the ownership, use, occupancy or operation thereof; (iii) any investigation, inquiry, order, hearing, action, or other proceeding by or before any governmental or quasi-governmental agency or authority in connection with any Hazardous Substance Activity; or (iv) any claim, demand, cause of action or investigation, or any action or other proceeding, whether meritorious or not, brought or asserted against such Participant which directly or indirectly relates to, arises from, is based on, or results from any of the matters described in clauses (i), (ii), or (iii) of this provision or any allegation of any such matters; (b) Losses incurred or suffered by such Participant that such Participant would not have incurred or suffered but for any act or any omission of NAI or of any NAI’s contractors or subcontractors during the period prior to any Termination of NAI’s Work (as provided in subparagraphs 7(B) and 7(C)) or during any other period that NAI remains in possession or control of the Construction Project (including any failure by NAI to obtain or maintain insurance as required by this Agreement during such periods; but excluding, however, as described below, certain Losses consisting of claims related to any failure of NAI to complete the Construction Project); (c) Losses incurred or suffered by such Participant that would not have been incurred but for any fraud, misapplication of funds (including Construction Advances), illegal acts, or willful misconduct on the part of NAI or its employees or of any other party acting under NAI’s control or with the approval or authorization of NAI; and (d) Losses incurred or suffered by such Participant that would not have been incurred but for any bankruptcy proceeding involving NAI as the debtor.