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3 <br />any part thereof, and sue for or otherwise collect such rents, issues, and profits, <br />including those past due and unpaid, and apply the same, less costs and expenses of <br />operation and collection, including reasonable attorneys’ fees, to any indebtedness <br />secured hereby, and in such order as Beneficiary may determine. Beneficiary’s right to <br />the rents, royalties, issues, profits, revenues, income and proceeds of the Property does <br />not depend upon whether or not Beneficiary takes possession of the Property. The <br />entering upon and taking possession of the Property, the collection of such rents, <br />issues, and profits, and the application thereof as aforesaid, shall not cure or waive any <br />default or notice of default hereunder or invalidate any act done pursuant to such notice. <br />If an Event of Default occurs while Beneficiary is in possession of all or part of the <br />Property and/or is collecting and applying Rents as permitted under this Deed of Trust, <br />Beneficiary, Trustee, and any receiver shall nevertheless be entitled to exercise and <br />invoke every right and remedy afforded any of them under this Deed of Trust and at law <br />or in equity, including the right to exercise the power of sale granted hereunder. <br />Regardless of whether or not Beneficiary, in person or by agent, takes actual <br />possession of the Land and Improvements, Beneficiary shall not be deemed to be a <br />“mortgagee in possession,” shall not be responsible for performing any obligation of the <br />lessor under any Lease, shall not be liable in any manner for the Property, or the use, <br />occupancy, enjoyment, or operation of any part of it, and unless due solely to the willful <br />misconduct or gross negligence of Beneficiary, shall not be responsible for any <br />dangerous or defective condition of the Property or any negligence in the management, <br />repair or control of the Property. <br /> <br />4. Fixture Filing. This Deed of Trust is intended to be and constitutes a fixture filing <br />pursuant to the provisions of the Uniform Commercial Code (“UCC”) with respect to all <br />of the Property constituting fixtures, is being recorded as a fixture financing statement <br />and filing under the UCC, and covers property, goods, and equipment which are or are <br />to become fixtures related to the Land and the Improvements. Trustor covenants and <br />agrees that this Deed of Trust is to be filed in the real estate records of Alameda County <br />and shall also operate from the date of such filing as a fixture filing in accordance with <br />Section 9502 and other applicable provisions of the UCC. This Deed of Trust shall also <br />be effective as a financing statement covering minerals or the like (including oil and gas) <br />and accounts subject to the UCC, as amended. Trustor shall be deemed to be the <br />"debtor" and Beneficiary shall be deemed to be the "secured party" for all purposes <br />under the UCC. The full name of Trustor and the mailing address of Trustor are set <br />forth in Section 7.6 of this Deed of Trust. <br /> <br />5. Trustor’s Representations, Warranties and Covenants; Rights and Duties of the <br />Parties. <br /> <br /> 5.1. Trustor’s Estate. Trustor represents and covenants that Trustor is lawfully <br />seized of the estate hereby conveyed and has the right to grant and convey the <br />Property. <br />