(II) IF (A) THE INDEMNIFYING PARTY HAS FAILED TO ASSUME THE DEFENSE
OR EMPLOY COUNSEL REASONABLY ACCEPTABLE TO THE INDEMNIFIED PARTY OR (B) IF THE
DEFENDANTS IN ANY SUCH ACTION INCLUDE BOTH THE INDEMNIFIED PARTY AND THE
INDEMNIFYING PARTY AND COUNSEL TO THE INDEMNIFIED PARTY SHALL HAVE CONCLUDED
THAT THERE MAY BE REASONABLE DEFENSES AVAILABLE TO THE INDEMNIFIED PARTY THAT
ARE DIFFERENT FROM OR IN ADDITION TO THOSE AVAILABLE TO THE INDEMNIFYING PARTY
OR IF THE INTERESTS OF THE INDEMNIFIED PARTY REASONABLY MAY BE DEEMED TO
CONFLICT WITH THE INTERESTS OF THE INDEMNIFYING PARTY, THEN THE INDEMNIFIED
PARTY SHALL HAVE THE RIGHT TO SELECT A SEPARATE COUNSEL AND TO ASSUME SUCH LEGAL
DEFENSE AND OTHERWISE TO PARTICIPATE IN THE DEFENSE OF SUCH ACTION, WITH THE
EXPENSES AND FEES OF SUCH SEPARATE COUNSEL AND OTHER EXPENSES RELATED TO SUCH
PARTICIPATION TO BE REIMBURSED BY THE INDEMNIFYING PARTY AS INCURRED.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE INDEMNIFYING PARTY
SHALL NOT SETTLE ANY INDEMNIFIED CLAIM WITHOUT THE CONSENT OF THE INDEMNIFIED
PARTY, UNLESS THE SETTLEMENT THEREOF IMPOSES NO LIABILITY OR OBLIGATION ON,
INVOLVES NO ADMISSION OF WRONGDOING OR MALFEASANCE BY, AND INCLUDES A COMPLETE
RELEASE FROM LIABILITY OF, THE INDEMNIFIED PARTY.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01.
INTERPRETATION.
ARTICLE, SECTION, SCHEDULE AND
EXHIBIT REFERENCES ARE TO THIS AGREEMENT, UNLESS OTHERWISE SPECIFIED.
ALL
REFERENCES TO INSTRUMENTS, DOCUMENTS, CONTRACTS AND AGREEMENTS ARE REFERENCES TO
SUCH INSTRUMENTS, DOCUMENTS, CONTRACTS AND AGREEMENTS AS THE SAME MAY BE
AMENDED, SUPPLEMENTED AND OTHERWISE MODIFIED FROM TIME TO TIME, UNLESS OTHERWISE
SPECIFIED.
THE WORD "INCLUDING" SHALL MEAN "INCLUDING BUT NOT LIMITED TO".
WHENEVER LINN ENERGY HAS AN OBLIGATION UNDER THE BASIC DOCUMENTS, THE EXPENSE OF
COMPLYING WITH SUCH OBLIGATION SHALL BE AN EXPENSE OF LINN ENERGY UNLESS
OTHERWISE SPECIFIED.
WHENEVER ANY DETERMINATION, CONSENT OR APPROVAL IS TO BE
MADE OR GIVEN BY A PURCHASER UNDER THIS AGREEMENT, SUCH ACTION SHALL BE IN SUCH
PURCHASER'S SOLE DISCRETION UNLESS OTHERWISE SPECIFIED.
IF ANY PROVISION IN THE
BASIC DOCUMENTS IS HELD TO BE ILLEGAL, INVALID, NOT BINDING OR UNENFORCEABLE,
SUCH PROVISION SHALL BE FULLY SEVERABLE AND THE BASIC DOCUMENTS SHALL BE
CONSTRUED AND ENFORCED
24
AS IF SUCH ILLEGAL, INVALID, NOT BINDING OR UNENFORCEABLE PROVISION HAD NEVER
COMPRISED A PART OF THE BASIC DOCUMENTS, AND THE REMAINING PROVISIONS SHALL
REMAIN IN FULL FORCE AND EFFECT.
THE BASIC DOCUMENTS HAVE BEEN REVIEWED AND
NEGOTIATED BY SOPHISTICATED PARTIES WITH ACCESS TO LEGAL COUNSEL AND SHALL NOT
BE CONSTRUED AGAINST THE DRAFTER.
SECTION 8.02.
SURVIVAL OF PROVISIONS.
THE REPRESENTATIONS AND
WARRANTIES SET FORTH IN THIS AGREEMENT SHALL SURVIVE THE EXECUTION AND DELIVERY
OF THIS AGREEMENT INDEFINITELY.
THE COVENANTS MADE IN THIS AGREEMENT OR ANY
OTHER BASIC DOCUMENT SHALL SURVIVE THE CLOSING OF THE TRANSACTIONS DESCRIBED
HEREIN AND REMAIN OPERATIVE AND IN FULL FORCE AND EFFECT REGARDLESS OF
ACCEPTANCE OF ANY OF THE PURCHASED CLASS D UNITS OR THE PURCHASED UNITS AND
PAYMENT THEREFOR AND REPAYMENT, CONVERSION, EXERCISE OR REPURCHASE THEREOF.
ALL
INDEMNIFICATION OBLIGATIONS OF LINN ENERGY AND THE PURCHASERS PURSUANT TO
SECTION 3.12, SECTION