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40 Board of County Commissioners of Indian River County, Florida, et al. 1987 Page 18 the Borrower and NHC by the Underwriter expressly for use in the Official Statement; and provided, further, that the indemnity agreement contained in this Section shall not inure to the benefit of any Underwriter (or any person controlling such Underwriter) on account of any such losses, claims, damages, liabilities, expenses or actions arising from the sale of Bonds to any person if such Underwriter failed to send or give a copy of the Official Statement (as it may have been amended or supplemented) (excluding documents incorporated by reference) to such person with or prior to the written confirmation of the sale involved. The indemnity agreement of the Borrower and NHC contained in this Section and the covenants, representations and warranties of the Borrower and NHC contained in Sections 4 and 5 hereof, respectively, shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any Underwriter or any such controlling person and shall survive the delivery of the Bonds. The Underwriters agree promptly to notify the Borrower and NHC of the commencement of any litigation or proceedings against them or any of them' or any such controlling person in connection with the sale of the Bonds. The foregoing indemnity agreement is in addition to any further liability which the Borrower and NHC may have to any Underwriter, the Issuer or any of their directors, officers or controlling persons. In addition to the foregoing, the Borrower and NHC will indemnify the Issuer and each officer, employee or member of the legislative body thereof,, according to the foregoing terms, against claims asserted against them, if such claims arise out of or are based on the assertion that there is any untrue statement, or alleged untrue statement of a material fact or omission or alleged omission to state a material fact in the Preliminary Official Statement or. Official Statement, required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (b) The Issuer, its officers and employees and members of its legislative body, and the Underwriter agree that, upon the receipt of notice of the commencement of any action against it, its officers and employees, or members of its legislative body, or any person controlling it as aforesaid in respect of which indemnity may be sought on account of any indemnity agreement contained herein, it will promptly 'give written notice of the commencement thereof to the party or parties against whom indemnity shall be sought hereunder.' The omission so to notify such indemnifying party or parties of any such action shall reduce the liability of the indemnifying party or parties by the amount of damages attributable to the failure of the indemnified party to give such notice to the 4330x:10/23/87 3002-353