Health Net 2009 Annual Report Download - page 411

Any such notices shall be sent by (i) U.S. certified mail, postage prepaid, return receipt requested, in which case notice shall be
deemed delivered three (3) business days after timely deposit in the mail, (ii) a nationally recognized overnight courier, in which case
notice shall be deemed delivered one (1) business day after timely deposit with such courier; (iii) personally delivered, in which case
notice shall be deemed delivered upon receipt, or (iv) electronic communication, whether by telex, telegram, electronic mail or
facsimile, in which case notice shall be deemed delivered on the date of machine-generated confirmed receipt if a copy of such notice
is also sent by overnight courier on the same day.
37. WAIVER OF RIGHT TO JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW, LANDLORD
AND TENANT WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY OF ANY CONTRACT OR TORT CLAIM,
COUNTERCLAIM, CROSS-COMPLAINT, OR CAUSE OF ACTION IN ANY ACTION, PROCEEDING, OR HEARING
BROUGHT BY EITHER PARTY AGAINST THE OTHER ON ANY MATTER ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, OR TENANT’S USE OR
OCCUPANCY OF THE PREMISES, INCLUDING WITHOUT LIMITATION ANY CLAIM OF INJURY OR DAMAGE
OR THE ENFORCEMENT OF ANY REMEDY UNDER ANY CURRENT OR FUTURE LAW, STATUTE, REGULATION,
CODE, OR ORDINANCE. Landlord and Tenant agree that this paragraph constitutes a written consent to waiver of trial by jury
within the meaning of California Code of Civil Procedure Section 631(d)(2), and Tenant does hereby authorize and empower
Landlord to file this paragraph and/or this Lease, as required, with the clerk or judge of any court of competent jurisdiction as a
written consent to waiver of jury trial. If the waiver set forth in this Section 631 (d)(2) is determined by any court to be invalid
because it was executed prior to the commencement of any action, then Landlord and Tenant each covenant and agree to execute and
deliver to the other, within five (5) days of a written request by the other, a waiver of the right to trial by jury similar in terms and
scope to the waiver set forth in this Section 33 at such time following the commencement of such action as such waiver, if then made,
would be valid.
38. ATTORNEYS’ FEES. If either party places the enforcement of this Lease or any part hereof, or the collection of any Basic
Rent, additional rent or other charges or sums due or to become due hereunder, or recovery of the possession of the Premises, in the
hands of an attorney, or files suit upon the same, the non-prevailing (or defaulting) party shall pay the other party’s reasonable legal
and attorneys’ fees, costs and expenses, including legal and attorneys’ fees, costs and expenses incurred in connection with any
appeals and any bankruptcy or insolvency proceedings involving Tenant or this Lease. If Landlord is named as a defendant in any suit
brought against Tenant in connection with or arising out of Tenant’s occupancy hereunder, Tenant shall pay to Landlord its costs and
expenses in such suit, including its reasonable attorneys’ fees. Any such attorneys’ fees and other expenses incurred by either party in
enforcing a judgment in its favor under this Lease shall be recoverable separately from and in addition to any other amount included
in such judgment, and such attorneys’ fees obligation is intended to be severable from the other provisions of this Lease and to
survive and not be merged into any such judgment. The terms “attorneys’ fees” and “attorneys’ fees, costs and expenses” shall mean
the fees, costs and expenses of counsel to the parties hereto, which may include printing, photocopying, duplicating and other
expenses, air freight charges, and fees billed for law clerks, paralegals and other persons not admitted to the bar but performing
services
48