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                                                                  Exhibit (3)(a)











                         FIRST UNION REAL ESTATE EQUITY

                            AND MORTGAGE INVESTMENTS









                              AMENDED AND RESTATED
                              DECLARATION OF TRUST

                       (AS AMENDED THROUGH MARCH 6, 2001)





First Union 3-01 Exh (3)(a)

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                                TABLE OF CONTENTS

<TABLE>
<S>                                                                                                         <C>
ARTICLE I
         NAME OF TRUST - TITLE TO TRUST PROPERTY...............................................................1
         ---------------------------------------
         Section 1.1.   Name of the Trust......................................................................1
         Section 1.2.   Title to Trust property................................................................1
         Section 1.3.   Purposes of Trust......................................................................2

ARTICLE II
         POWERS AND AUTHORITY OF TRUSTEES......................................................................2
         --------------------------------
         Section 2.1.   General................................................................................2
         Section 2.2.   Power to Acquire, Hold and Dispose of Real and Personal property.......................3
         Section 2.3.   Power to Acquire, Hold and Dispose of Securities.......................................3
         Section 2.4.   Name in Which Title Held...............................................................3
         Section 2.5.   Power to Borrow, Mortgage and Pledge...................................................3
         Section 2.6.   Power to Lend and Invest...............................................................4
         Section 2.7.   Power to Pay Taxes.....................................................................4
         Section 2.8.   Power to Transfer Trust to Corporation.................................................4
         Section 2.9.   Power as to Securities.................................................................4
         Section 2.10.  Power to Delegate......................................................................4
         Section 2.11.  General Power to Enforce and Collect Securities........................................5
         Section 2.12.  Power to Incur Expenses, Appoint and Employ Officers and Agents........................5
         Section 2.13.  Power to Endorse and Guarantee.........................................................5
         Section 2.14.  Power as to Bank Deposits..............................................................6
         Section 2.15.  Power to Determine Capital and Income..................................................6
         Section 2.16.  Power to Value Trust Property and Keep Books...........................................6
         Section 2.17.  Power to Solicit Proxies etc. .........................................................6

ARTICLE III
         LIMITATIONS OF LIABILITY OF BENEFICIARIES, TRUSTEES AND OTHERS........................................7
         --------------------------------------------------------------
         Section 3.1.   No Personal Liability of Beneficiaries.................................................7
         Section 3.2.   Trustee's Liability Other Than to the Trust or Beneficiary.............................7
         Section 3.3.   Trustee's Liability to Trust and Beneficiaries -
                        Indemnification and Expense - Bond and Security........................................8
         Section 3.4.   No Implied Covenants or Obligations to be Read Into
                        this Instrument; Trustees' Right to Rely on Investment
                        Advisers and Counsel and Accountants...................................................9

ARTICLE IV
         SHARES OF BENEFICIAL INTEREST........................................................................10
         -----------------------------
         Section 4.1.   Shares $1 Par Value; Non-Assessable and Not Limited in Number.........................10
         Section 4.2.   Shares Certificates...................................................................10
</TABLE>
First Union 3-01 Exh (3)(a)


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<TABLE>
<S>                                                                                                         <C>
         Section 4.3.   Issue of Shares.......................................................................11
         Section 4.4.   Trustees Right to Own Shares..........................................................11
         Section 4.5.   Indemnification of Underwriters.......................................................11
         Section 4.6.   Change of Number of Issued Shares of Beneficial Interest..............................11

ARTICLE V
         RECORD AND TRANSFER OF SHARES........................................................................12
         -----------------------------
         Section 5.1.   Register of Shares - Record Owners....................................................12
         Section 5.2.   Transfer Agents and Registrars........................................................12
         Section 5.3.   Deposit of Certificates with Transfer Agents..........................................12
         Section 5.4.   Transfer on Records of Trust..........................................................13
         Section 5.5.   Transfer by Operation of Law..........................................................13
         Section 5.6.   Joint Owners of Shares................................................................13
         Section 5.7.   Duty of Trustees in Share Transfers...................................................14
         Section 5.8.   Lost Certificates.....................................................................14
         Section 5.9.   Regulations on Transfer...............................................................14

ARTICLE VI
         CHARACTERISTICS OF SHARES............................................................................14
         -------------------------
         Section 6.1.   Trustees in Complete Control..........................................................14
         Section 6.2.   Trust Not Affected by Death of Beneficiary............................................15
         Section 6.3.   Shares Held by Trust..................................................................15

ARTICLE VII
         MEETINGS OF BENEFICIARIES............................................................................15
         -------------------------
         Section 7.1.   Annual and Special Meetings Call......................................................15
         Section 7.2.   Notice of Meetings....................................................................15
         Section 7.3.   Beneficiaries Cannot Bind Trustees....................................................15
         Section 7.4.   Closing Transfer Books - Record Date..................................................16
         Section 7.5.   Voting................................................................................16
         Section 7.6.   Report at Annual Meeting..............................................................16
         Section 7.7.   Inspection of Records.................................................................16

ARTICLE VIII
         TRUSTEES.............................................................................................17
         --------
         Section 8.1.   Number of Trustees....................................................................17
         Section 8.2.   Election of Trustees; Terms of Office.................................................17
         Section 8.3.   Resignation and Removal...............................................................17
         Section 8.4.   Filling Vacancy.......................................................................18
         Section 8.5.   Trust Continues.......................................................................18
         Section 8.6.   Trustees' Meetings and Action.........................................................18
         Section 8.7.   Trustees' Compensation................................................................19
         Section 8.8.   By-Laws of Trust......................................................................19
         Section 8.9.   Executive Committee...................................................................19
</TABLE>

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<TABLE>
<S>                                                                                                         <C>
         Section 8.10.  Trustee's Other Business Activities...................................................19


ARTICLE IX
         DISTRIBUTIONS TO BENEFICIARIES.......................................................................19
         ------------------------------
         Section 9.1.   Trustees May Make Distributions.......................................................19
         Section 9.2.   Retained Amounts......................................................................20
         Section 9.3.   Information to Beneficiaries..........................................................20

ARTICLE X
         AMENDMENT OF TRUST...................................................................................20
         ------------------
         Section 10.1.  Amendment.............................................................................20

ARTICLE XI
         MISCELLANEOUS. ......................................................................................21
         -------------
         Section 11.1.  Failure to Qualify as Real Estate Investment Trust....................................21
         Section 11.2.  Laws of Ohio Govern...................................................................21
         Section 11.3.  Counterparts..........................................................................21
         Section 11.4.  Certifications........................................................................22
         Section 11.5.  Recording.............................................................................22
         Section 11.6.  Annual Financial Statements...........................................................22
         Section 11.7.  Information on Share Ownership........................................................23
         Section 11.8.  Fiscal Year...........................................................................23
         Section 11.9.  Notices...............................................................................23
         Section 11.10. Contingent Powers of Beneficiaries....................................................23
         Section 11.11. Investment Policy.....................................................................24
         Section 11.12. Notices on Distributions..............................................................26
         Section 11.13. Transactions with Interested Parties..................................................26
         Section 11.14. Advisers..............................................................................26
         Section 11.15. Limitation on Expenses................................................................27
         Section 11.16. Appraisals............................................................................27
         Section 11.17. Prohibited Investments................................................................27
         Section 11.18. Prohibited Activities.................................................................27
         Section 11.19. Qualification as a Real Estate Investment Trust.......................................28
         Section 11.20. Purpose of Article and Section Headings...............................................28
         Section 11.21. Controlling Effect of Article XI......................................................28
         Section 11.22. Trustees' Power to Incur Indebtedness and Other Obligations
                        - Limitations Thereon.................................................................28
         Section 11.23. Trustees' Power to Invest in New Buildings and Partnerships,
                        Joint Ventures and Unimproved Land for New Buildings..................................29
         Section 11.24. Trustees' Power to Invest in Real Estate Mortgages and
                        in Certain Evidences of Indebtedness..................................................30
         Section 11.25. Options Respecting Trust Securities...................................................30
         Section 11.26. Authority of Trustees to Authorize Additional Restrictions............................30
</TABLE>

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<TABLE>
<S>                                                                                                         <C>
         Section 11.27. Authority of Trustees to Authorize Certain Investment,
                        Financing and Other Activities........................................................31


ARTICLE XII
         DURATION OF THE TRUST ...............................................................................31
         ---------------------
         Section 12.1.  Term of Trust.........................................................................31
         Section 12.2.  Merger; Sale of Trust Property........................................................32
         Section 12.3.  Liquidation...........................................................................32
</TABLE>





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FIRST UNION REAL ESTATE EQUITY AND MORTGAGE INVESTMENTS
AMENDED AND RESTATED DECLARATION OF TRUST
(As amended through March 6, 2001)
================================================================================

BY THIS AMENDED AND RESTATED DECLARATION OF TRUST, effective March 6, 2001,
amending the Amended Declaration of Trust made August 1, 1961, and thereafter
amended from time to time through November 16, 1999 (said Amended and Restated
Declaration of Trust, as heretofore and hereby amended, being referred to herein
as "this Declaration") by such persons as may from time to time be Trustees:

The Trustees of First Union Real Estate Equity and Mortgage Investments hereby
agree and declare that they will hold all property of every type and description
which they have acquired or may hereafter acquire as such Trustees, together
with the proceeds thereof and the rents an other income therefrom, IN TRUST, on
the terms and conditions set forth in this Declaration, for the benefit of the
holders from time to time of the certificates representing the shares of
beneficial interest in the Trust property issued by the Trust.

Where the context permits, "Beneficiaries" shall mean the record holders from
time to time of shares of beneficial interest in the Trust property, "Trustees"
or "Trust" shall mean William A. Ackman, Daniel J. Altobello, Bruce R.
Berkowitz, Jeffrey P. Citrin, Talton R. Embry, William A. Scully and Steven S.
Snider, and any successor or additional trustees who shall be appointed and duly
qualify, so long as they shall continue as such duly qualified trustees, and
said terms shall refer to such persons in their capacity as trustees and not in
their individual capacities and shall not include the officers, agents,
representatives or Beneficiaries of the Trust, and "Trust Property" shall mean
the property from time to time subject to this Declaration.

ARTICLE I
NAME OF TRUST - TITLE TO TRUST PROPERTY

SECTION 1.1.    NAME OF THE TRUST.

The name of this Trust shall be: "First Union Real Estate Equity and Mortgage
Investments" and, so far as may be practicable, the business of the Trust shall
be conducted in that name, the trade name "First Union", or such other trade
name as the Trustees may adopt in order to satisfy governmental regulation. The
Trustees may make and execute deeds, mortgages, leases, contracts, and other
instruments, acquire, mortgage, lease, convey and transfer real or personal
property, and sue and be sued under any of the aforesaid names.

SECTION 1.2.    TITLE TO TRUST PROPERTY.

Legal title to all Trust property shall be vested in the Trustees, and held by
and transferred to the Trustees, except as provided in Section 2.4 or elsewhere
herein.


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SECTION 1.3.    PURPOSES OF TRUST.

Notwithstanding anything to the contrary contained in this Declaration of Trust,
the purposes of the Trust hereby created shall be to purchase, acquire, hold,
improve, lease, sell or mortgage or otherwise encumber real property or real and
personal property or interests in real or personal property, to receive the
income, interest, rents and profits thereof, and to reinvest them or distribute
them, in accordance with the provisions of this Declaration of Trust, to the
holders of beneficial interests in the Trust.

ARTICLE II
POWERS AND AUTHORITY OF TRUSTEES

SECTION 2.1.    GENERAL.

The Trustees shall have, without prior or further authorization, absolute and
exclusive power, control and authority over the Trust property held by them at
any time hereunder, over the management and disposition thereof, and over the
management and conduct of the business of the Trust to the same extent as if the
Trustees were the sole owners of such property and business in their own right,
free from any power of control on the part of the Beneficiaries, subject only to
the limitations herein expressly stated. No person (the word "person" whenever
used in this Declaration, except where the context otherwise requires, shall be
deemed to mean any individual, individuals, association, trust, partnership,
corporation, or other entity) shall in any event be bound to see to the
application of any money or property paid to or delivered to the Trustees or
their authorized representative. No investment or reinvestment of the Trust
property hereunder shall be deemed improper because of its speculative
character, whether or not the same be producing income or be of the kind
commonly regarded by law as proper investments for trust funds, or because a
greater proportion of the Trust property is invested therein that is usual for
trustees.

The Trustees shall have all powers necessary, convenient or appropriate to
effectuate the purposes of the Trust and may take any action which they may deem
necessary or desirable to that end, although such matters or things are not
herein specifically mentioned. Any determination of the purposes of the Trust
made by the Trustees in good faith shall be conclusive. In construing the
provisions of this Declaration, the presumption shall be in favor of the grant
of owners to the Trustees.

Without restricting or limiting the generality of the foregoing, such powers of
the Trustees shall include the powers enumerated below in this Declaration;
provided however, that the powers granted in this Declaration are subject to and
limited by the provisions of Article XI hereof.

SECTION 2.2.    POWER TO ACQUIRE, HOLD AND DISPOSE OF REAL AND PERSONAL
                PROPERTY.

The Trustees shall have power for such consideration and on such terms and
conditions as they may deem proper, through the issuance of shares of beneficial
interest in the Trust property or


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through the issuance of notes, debentures, bonds, or other obligations of the
Trust, for cash, or otherwise, to purchase or acquire, to hold, manage, improve,
lease (including building leases, part of the consideration for which is the
building on or adding to the premises by the lessee) for any term, whether or
not extending beyond the possible termination of the Trust, to rent, convey,
sell, option, exchange, mortgage (with or without power of sale), release,
partition, or otherwise deal in personal property or in real estate of any type
and description, including fee, leasehold, mortgage, ground rent and any other
type of interest therein, and/or buildings and structures and tangible personal
property of any type and description situated thereon or elsewhere, to adjust
boundaries and grant or obtain easements or options with or without
consideration, and to erect, construct, alter, repair, demolish or otherwise
physically affect any buildings or structures of any type or description.

SECTION 2.3.    POWER TO ACQUIRE, HOLD AND DISPOSE OF SECURITIES.

The Trustees shall have power, for such consideration and on such terms and
conditions as they may deem proper, through the issuance of shares of beneficial
interest in the Trust property, through the issuance of notes, debentures,
bonds, or other obligations or securities of the Trust, for cash, or otherwise
to acquire, and to hold, sell, exchange, pledge, collect and pay, stocks, bonds,
notes, certificates of indebtedness, debentures, mortgages (first or otherwise),
bank acceptances, drafts, certificates of interest, securities, obligations, and
in general any property or rights (legal or equitable) owned, held, created, or
issued by or representing an interest in any corporation, business trust
(including the business trust created by these presents), trust, partnership, or
other organization whether domestic or foreign, any individual, the United
States of America or any of the several states or territories or any political
subdivisions or agencies thereof, or foreign governments or political
subdivisions thereof.

SECTION 2.4.    NAME IN WHICH TITLE HELD.

The Trustees shall have power to cause legal title to (or evidences of title to)
any property of this Trust to be held in the name of the Trust, of one or more
of the Trustees or of any other person, on such terms, in such manner, and with
such powers as the Trustees hereunder may determine and without disclosure that
the Trustees are interested therein).

SECTION 2.5.    POWER TO BORROW, MORTGAGE AND PLEDGE.

The Trustees shall have power to borrow money for the purposes of this Trust, to
give notes, debentures, bonds, and other negotiable or nonnegotiable instruments
of this Trust therefor, to enter into other obligations on behalf of the Trust,
and to mortgage and pledge the real and personal property of this Trust or any
part thereof to secure any of the foregoing.


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SECTION 2.6.    POWER TO LEND AND INVEST.

The Trustees shall have power to lend money (other than to Beneficiaries,
officers, employees, or Trustees of the Trust) and to invest and reinvest any
funds of the Trust as they shall deem wise; and to create a reserve fund or
reserve funds for such purposes as the Trustees deem advisable and invest or
reinvest the same in such manner as they may deem best.

SECTION 2.7.    POWER TO PAY TAXES.

The Trustees shall have power to pay all taxes or assessments, of whatever kind
or nature, imposed upon or against the Trustees individually or collectively in
connection with the Trust property, or upon or against the Trust property or any
part thereof; and for any of the foregoing purposes to make such returns and do
all such other acts and things as may be deemed by the Trustees as necessary or
desirable.

SECTION 2.8.    POWER TO TRANSFER TRUST TO CORPORATION.

The Trustees shall have power to cause to be organized or assist in organizing
under the laws of any jurisdiction a corporation or corporations or any other
trust, association, or other organization to take over the Trust property or any
part or parts thereof or to carry on any business in which this Trust shall
directly or indirectly have any interest, and to sell, convey, and transfer the
Trust property or any part or parts thereof to any such corporation, trust,
association, or organization in exchange for the shares or securities thereof or
otherwise, and to lend money to, subscribe for the shares or securities of, and
enter into any contracts with any such corporation, trust, association or
organization, or any corporation, trust, partnership, association, or
organization in which this Trust holds or is about to acquire shares or any
other interest.

SECTION 2.9.    POWER AS TO SECURITIES.

The Trustees shall have power to exercise all the rights, powers, and privileges
appertaining to the ownership of all or any securities forming part of the Trust
property to the same extent that an individual might, and, without limiting the
generality of the foregoing, to vote, or give any consent, request, or notice,
or waive any notice, either in person or by proxy or power of attorney, with or
without power of substitution, to one or more persons, which proxies and powers
of attorney may be for meetings or action generally or for any particular
meetings or action, and may include the exercise of discretionary powers.

SECTION 2.10.   POWER TO DELEGATE.

Except as otherwise provided herein, the Trustees shall have power to delegate
from time to time to such one or more of their number, or to such other person
or persons as the Trustees may deem appropriate, the doing of such things and
the execution of such deeds or other instruments either in the names of all the
Trustees or as the Trust's agents, officers, employees, attorneys or
representatives, as the Trustees may from time to time deem expedient.


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SECTION 2.11.   GENERAL POWER TO ENFORCE AND COLLECT SECURITIES.

The Trustees shall have power to collect, sue for, receive and receipt for all
sums of money coming due to this Trust, to consent to the extension of the time
for payment of, to waive defaults in respect of, or to consent to the renewal of
any bonds or other securities or obligations, and to engage or intervene in,
prosecute, defend, compound, compromise, abandon or adjust, by arbitration or
otherwise, any actions, suits, proceedings, disputes, claims, demands, or things
relating to the Trust property; to be parties to reorganizations and to transfer
to and deposit with any corporation, committee, voting trustees, or other
persons, any stocks, shares, or bonds, or other securities or obligations of any
corporation, trust, association, or other organization, the securities of which
form a part of the Trust property, for the purposes of any reorganization of any
such corporation, trust, association, or other organization, or otherwise to
participate in any arrangement for enforcing or protecting the interests of the
Trustees as the owners or holders of such stocks, shares, bonds, or other
securities or obligations and to pay any assessment levied in connection with
such reorganization or arrangements; and to give time with or without security
for the payment or delivery of any debts or property and to execute and enter
into releases, agreements, and other instruments; and to pay or satisfy any
debts or claims upon evidence that the Trustees think sufficient.

SECTION 2.12.   POWER TO INCUR EXPENSES, APPOINT AND EMPLOY OFFICERS AND AGENTS.

The Trustees shall have power to incur and pay from the Trust property, or
reimburse other for payments made in connection with, any charges or expenses
which, in the opinion of the Trustees, are necessary or incidental to, or proper
for the organizing or financing of the Trust or for the carrying out of any of
the purposes of the Trust without regard to whether such charges or expenses are
for services rendered before or after the execution of this Declaration and
without regard to any interest of any Trustee in such payment; to employ such
clerical assistance as they deem necessary to the transaction of the business of
the Trust; to appoint, engage, or employ officers and other persons, firms or
corporations, including consultants, accountants, technical, financial, real
estate or investment advisers or managers, attorneys, real estate agents or
brokers, corporate fiduciaries, depositories, transfer agents for the transfer
of shares in the Trust, registrars, underwriters, investment bankers, or others
for the sale of shares or securities of, or financing of, the Trust; and to fix
their titles, duties, periods of employment and compensation. The same persons
may be employed in multiple capacities and may receive compensation from the
Trust in as many capacities as they may be engaged or employed by the Trust, and
the Trustees, or any of them, may be the persons, or be interested in the
persons, so employed.

SECTION 2.13.   POWER TO ENDORSE AND GUARANTEE.

The Trustees shall have power to endorse or guarantee the payment of any notes
or other obligations of any person; to make contracts of guaranty or suretyship,
or enter into other obligations therefor; and to mortgage and pledge the real
and personal property of the Trust or any part thereof to secure any or all of
such obligations provided that no such endorsement,

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guaranty, or suretyship shall relate to the individual obligation of any
officer, employee or Trustee of the Trust.

SECTION 2.14.   POWER AS TO BANK DEPOSITS.

The Trustees shall have power to deposit any moneys or securities included in
the Trust property with any one or more banks, trust companies, or other banking
institutions deemed by the Trustees to be responsible, without regard to whether
such accounts will earn interest, such moneys or securities to be subject to
withdrawal on notice or upon demand and in such manner as the Trustees may
determine, and the Trustees shall have no responsibility for any loss which may
occur by reason of the failure of the person with whom the moneys or securities
have been deposited properly to account for the moneys or securities so
deposited.

SECTION 2.15.   POWER TO DETERMINE CAPITAL AND INCOME.

The Trustees shall have power to determine conclusively whether any monies,
securities, or other properties of the Trust are for the purposes of the Trust
to be considered as capital or income and in what manner any expenses or
disbursements are to be borne as between capital and income whether or not in
the absence of the provision such moneys, securities, or other properties would
be regarded as capital or as income and whether or not in the absence of this
provision such expense or disbursement would ordinarily be charged to capital or
to income.

SECTION 2.16.   POWER TO VALUE TRUST PROPERTY AND KEEP BOOKS.

The Trustees shall have power from time to time to determine conclusively the
value of, and to revalue, any of the real estate, securities, or other
properties of this Trust and any services, securities, property or other
consideration hereafter to be acquired by this Trust in accordance with such
appraisals or other information as they deem satisfactory, and in accordance
with methods of valuation consistently applied; and to keep the books of the
Trust and render reports to the Beneficiaries of the Trust on the basis of the
figures so adopted.

SECTION 2.17.   POWER TO SOLICIT PROXIES ETC.

The Trustees shall have power to solicit proxies of the Beneficiaries, to adopt
and use a seal, and to determine the fiscal year of the Trust and the method or
form in which its accounts shall be kept and to change from time to time the
fiscal year or method or form of accounts.










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ARTICLE III
LIMITATIONS OF LIABILITY OF BENEFICIARIES, TRUSTEES AND OTHERS

SECTION 3.1.    NO PERSONAL LIABILITY OF BENEFICIARIES.

No Beneficiary of this Trust shall be held to any personal liability whatsoever,
in tort, contract or otherwise, in connection with Trust property or the affairs
of this Trust, nor shall any Beneficiary be liable to assessment in connection
therewith. The Trustees shall have no power to bind the Beneficiaries
personally, and all persons shall look solely to the Trust property for
satisfaction of claims of any nature arising in connection with Trust property
or the affairs of this Trust, whether rounded upon any debt, demand, judgment,
decree or obligation of any nature whatsoever against or incurred by the Trust,
or by the Trustees, or by any officer, employee, or agent thereof.

The Trustees shall maintain such insurance against possible liability on the
part of the Trust and on the part of the Beneficiaries and any officers or
Trustees of the Trust in the course of trust business as the Trustees in their
sole discretion deem to be appropriate to protect the Trust property, the
Beneficiaries and the officer or Trustees of the trust.

In every written order, contract, bond, note, mortgage, instrument or obligation
given or executed by the Trustees or with their authority, the Trustees shall
cause to be inserted a provision that the Beneficiaries shall not be personally
liable and that the other party shall look solely to the property of the Trust
for the payment of any claim thereunder. The omission, however, of such
provision from any such document or instrument shall not affect the validity
thereof or render the Beneficiaries personally liable thereon, nor shall the
Trustees or any officer, employee or agent of the Trust be liable for such
omission, nor shall such omission in any way affect any right of the Trustees or
Beneficiaries to indemnification from the Trust property.

SECTION 3.2.    TRUSTEE'S LIABILITY OTHER THAN TO THE TRUST OR BENEFICIARY.

No Trustee, officer, employee or agent of this Trust shall be held to any
personal liability whatsoever, in tort, contract or otherwise, to others than
the Trust or the Beneficiaries in connection with Trust property or the affairs
of this Trust; and all such persons shall look solely to the Trust property for
satisfaction of claims of any nature arising in connection with Trust property
or the affairs of this Trust. If the Trustees, as Trustees, are made parties to
any suit or proceedings to enforce any such obligation or liability, they shall
not on account thereof be held to any personal liability.


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<PAGE>   13


SECTION 3.3.    TRUSTEE'S LIABILITY TO TRUST AND BENEFICIARIES - INDEMNIFICATION
AND EXPENSE - BOND AND SECURITY.

No Trustee, officer, employee or agent of this Trust shall be personally liable
for any act or omission of any other Trustee (including without limitation the
failure to compel in any way any former or acting or future Trustee to redress
any breach of trust), officer, employee or agent. Except for such of his own
acts as constitute bad faith, willful misfeasance, or willful disregard of his
duties, and except as otherwise prohibited by law, each Trustee, officer,
employee or agent of the Trust shall be indemnified and held harmless from and
against, and reimbursed for any and all loss, cost, liability, obligation and
amounts paid in settlement incurred in connection with any threatened, pending
or completed action, suit, arbitration or proceeding whether civil, criminal,
administrative or investigative (including, without limitation, any action
brought by or in the right of the Trust), arising out of or in connection with
Trust property or the affairs of the Trust or which he may suffer because he is
or was or consented to become a Trustee, officer, employee or agent of the Trust
or is or was serving at the request of the Trust as a trustee, director,
officer, employee or agent of another corporation or enterprise.

The rights accruing to any person under these provisions shall not exclude any
other right to which he may be lawfully entitled, nor shall anything contained
herein restrict the right of this Trust to indemnify or reimburse such Trustee,
officer, employee or agent in any proper case even though not specifically
provided for herein, nor shall anything contained herein restrict such rights of
a Trustee to contribution as may be available under applicable law. The Trustees
may make advance payments in connection with indemnification under this section
provided that the indemnified Trustee, officer, employee or agent of the Trust
shall have given a written undertaking to repay such amount in the event that it
is ultimately determined that he is not entitled to such indemnification for
such amounts under applicable law, this Declaration of Trust, any agreement
entered into pursuant to this Section 3.3 or otherwise.

In order to carry out the intent and purposes of this section, and to assure the
Trust's performance of its obligations hereunder, the Trust shall have the power
to enter into agreements with Trustees, officers, employees or agents designated
by the Trustees, without specific approval thereof by the shareholders of this
Trust. The terms of any such agreements need not be identical to the terms of
any other such agreement and any such agreement which had been entered into may
subsequently be amended or changed by mutual agreement of the parties thereto,
without specific approval thereof by the shareholders of the Trust.

The Trust shall have the power to dedicate the assets of the Trust to establish
arrangements for funding its indemnification obligations under this section,
including but not limited to depositing assets in trust funds, obtaining bank
letters of credit in favor of indemnified persons or entities, establishing
specific reserve accounts and otherwise funding special self-insurance
arrangements for these purposes.

No Trustee shall be obligated to give any bond or surety or other security for
the performance of any of his duties.



First Union 3-01 Exh (3)(a)             8

<PAGE>   14



SECTION 3.4.    NO IMPLIED COVENANTS OR OBLIGATIONS TO BE READ INTO THIS
INSTRUMENT; TRUSTEES' RIGHT TO RELY ON INVESTMENT ADVISERS AND COUNSEL AND
ACCOUNTANTS.

GENERAL RIGHT TO RELY.

Without in any respect relieving the Trustees of this Trust from liability for
bad faith, willful misfeasance, negligence, or willful disregard of their
duties, it is expressly agreed that

(1)      The duties and obligations of the Trustees shall be determined solely
by the express provisions of this instrument and the Trustees shall not be
liable except for the performance of such duties and obligations as are
specifically set forth in this instrument and no implied duties or obligations
shall be read into this instrument, and

(2)      The Trustees are authorized to rely conclusively, as to the truth of
the statements and the correctness of the opinions and facts expressed therein,
upon any opinion or statements furnished to the trustees by the Trust's
investment advisers. The Trustees of this trust shall not incur any personal
liability whatsoever for their reliance on such opinions and statements and/or
any action or lack of action based on such opinions or statements.

(3)      The Trustees may consult with counsel and independent public
accountants selected by the Trustees and the opinion of such counsel or
independent public accountants shall be full and complete authorization and
protection in respect of any action taken or suffered by the Trustees in
accordance with or based on the opinion of such counsel or independent public
accountants.

(4)      The Trustees shall incur no personal liability whatsoever in acting
upon any demand, notice, request, opinion, consent, waiver, certificate,
document, statement of facts or instrument believed by them to be genuine or to
have been signed or presented by the proper persons or properly or duly made.



First Union 3-01 Exh (3)(a)             9

<PAGE>   15

ARTICLE IV
SHARES OF BENEFICIAL INTEREST

SECTION 4.1.    SHARES $1 PAR VALUE; NON-ASSESSABLE AND NOT LIMITED IN NUMBER.

Beneficial interest in the Trust property shall be divided into and represented
by shares issued to Beneficiaries hereunder which shares shall be of $1 par
value. All such shares shall be non-assessable and non-redeemable and shall be
of the same class with equal voting, distribution, liquidation and other rights.
There shall be no limit on the number of shares which the Trust is authorized to
issue. The Trustees shall initially issue 1,060,000 shares for such
consideration, not less than par value, and on such terms as may be determined
by the persons designated in this Declaration as original Trustees. Certificates
for the initial shares shall be in the form provided in the By-Laws and shall be
signed on behalf of the Trust by the facsimile signature of the two original
Trustees and shall be countersigned by the Transfer Agent and Registrar. The
Transfer Agent for the shares shall be The Union Commerce Bank, of Cleveland,
Ohio, and the Registrar shall be The Cleveland Trust Company, Cleveland, Ohio,
or such other persons as may be appointed by the Trustees.

SECTION 4.2.    SHARES CERTIFICATES.

Every Beneficiary shall be entitled to receive a transferable certificate, in
such form as the Trustees shall from time to time approve, specifying the number
of shares of beneficial interest in the Trust property held by him. The
certificates in the form so approved shall be treated as negotiable, and title
thereto and to the shares represented thereby shall be transferred by delivery
thereof endorsed either in blank or to a specified person by the person
appearing by the certificate to be the owner of the shares represented thereby
or by delivery of the certificate and of a separate document containing either a
written assignment of the certificate or a power of attorney to sell, assign or
transfer the certificate or the shares represented thereby, which separate
document is signed by the person appearing by the certificate to be the owner of
the shares represented thereby, and which assignment or power of attorney is
either in blank or to a specified person. Unless otherwise determined by the
Trustees, such certificates shall be signed, manually or by facsimile, by one or
more of the Trustees or officers of this Trust designated for that purpose from
time to time by the Trustees by instrument in writing filed with the transfer
agent and registrar, if any, and shall be countersigned by a transfer agent, and
registered by a registrar, if any. mere shall be filed with each transfer agent
and registrar, if any, a certified copy of the form of certificate so approved
by the Trustees, and such form shall continue to be used unless and until the
Trustees approve some other form. In case any one or more officers or Trustees
of this Trust who shall have signed certificates shall cease to be such Trustees
or officers before the certificates so signed shall have been actually issued,
such certificates may nevertheless be issued with the same effect as though the
persons who signed such certificates had not ceased to be such officers or
Trustees of this Trust. The Trustees may in their discretion authorize
certificates to be signed or authenticated by the facsimile signature of the
Trustees or officers who are authorized to sign such certificates; provided that
any certificate signed or


First Union 3-01 Exh (3)(a)             10
<PAGE>   16

authenticated by the facsimile signature of an officer or Trustee shall not be
valid unless countersigned by a transfer agent and registered by a registrar, if
any.

SECTION 4.3.    ISSUE OF SHARES.

The Trustees in their discretion may from time to time without vote of the
Beneficiaries issue shares of this Trust, in addition to the then issued and
outstanding shares and shares, if any, held in the treasury, to such party or
parties and for such property or consideration, at such time or times, and on
such terms as the Trustees may deem best, and may in such manner acquire other
assets (real, personal, or mixed) and businesses, and no prior offering thereof
to any Beneficiaries need be made.

SECTION 4.4.    TRUSTEES RIGHT TO OWN SHARES.

A Trustee may acquire, hold or dispose of shares in the Trust for his individual
account or the account of another and may exercise all rights of a Beneficiary
to the same extent as though he were not Trustee.

SECTION 4.5.    INDEMNIFICATION OF UNDERWRITERS.

Without in any way limiting the generality of the other applicable provisions of
this Declaration, it is expressly understood that the Trustees shall have power
in connection with the sale of shares or securities of the Trust, to indemnify
and save harmless, or to obtain insurance to indemnify and save harmless, any
underwriter, dealer or other participant in the purchase or distribution of
securities of the Trust (including persons in whom a Trustee or officer has an
interest), in respect of such matters, in such amounts and for such periods of
time as the Trustees shall, in their sole discretion, determine to be necessary
or desirable.

SECTION 4.6.    CHANGE OF NUMBER OF ISSUED SHARES OF BENEFICIAL INTEREST.

(a)      The Trustees are hereby empowered, from time to time and without action
of the Beneficiaries, to change the then issued shares of beneficial interest
("Old Shares") into a lesser number (a "Reverse Split") of shares of beneficial
interest ("New Shares"). In connection therewith, in lieu of a fractional New
Share, each holder of an Old Share who otherwise would be entitled to receive a
fractional New Share will be entitled to receive cash in an amount equal to the
market value of each Old Share that would have been converted into a fraction of
a New Share but for this sentence, upon surrender of the certificate for such
Old Share. For this purpose, the market value of each Old Share shall be the
unweighted average of the closing price of a common share of beneficial interest
for each of the ten business days ending on the date immediately preceding the
date on which the Reverse Split becomes effective. The Trustees are hereby
empowered to adopt rules and regulations concerning the surrender of
certificates with respect to Old Shares, issuance of certificates with respect
to the New Shares and payment for fractional shares resulting from any Reverse
Split that the Trustees may, from time to time, authorize.



First Union 3-01 Exh (3)(a)             11

<PAGE>   17

(b)      The Trustees are hereby empowered, from time to time and without action
of the Beneficiaries, to change the Old Shares into a greater number (a "Forward
Split") of shares of beneficial interest ("Forward New Shares"). In connection
therewith, the Trustees are hereby empowered to adopt rules and regulations
concerning the surrender of certificates with respect to Old Shares, issuance of
certificates with respect to the Forward New Shares and payment for fractional
shares resulting from any Forward Split that the Trustees may, from time to
time, authorize.

(c)      In connection with the implementation of a specific Reverse Split or
Forward Split, the Trustees may, but shall not be required to, change the par
value per Share.

ARTICLE V
RECORD AND TRANSFER OF SHARES

SECTION 5.1.    REGISTER OF SHARES - RECORD OWNERS.

A register shall be kept by or on behalf of the Trustees, under the direction of
the Trustees, which shall contain the names and addresses of the Beneficiaries
and the number of shares held by them respectively and the numbers of the
certificates representing the same and a record of all transfers thereof. Only
Beneficiaries whose certificates are so recorded shall be entitled to vote or to
receive dividends or otherwise to exercise or enjoy the rights of Beneficiaries.
No Beneficiary shall be entitled to receive payment of any dividend, nor to have
notice given to him as herein provided, until he has given his address to a
transfer agent or such other officer or agent of the Trustees as shall keep the
said register for entry thereon. The persons in whose names the shares are
registered pursuant to this Section 5.1 shall be deemed the absolute owners
thereof, and, until a transfer is effected on the books of the Trust, the
Trustees shall not be affected by any notice, actual or constructive, of any
transfer and the Trustees may treat the persons in whose names shares stand of
record as the absolute owners thereof for all purposes.

SECTION 5.2.    TRANSFER AGENTS AND REGISTRARS.

The Trustees shall have power to employ in any city a transfer agent or transfer
agents, and if they so determine a registrar or registrars. The transfer agent
or transfer agents may keep the register of the Trust and record therein the
original issues and transfers, if any, of the said shares and countersign
certificates of shares issued to the persons entitled to the same.

SECTION 5.3.    DEPOSIT OF CERTIFICATES WITH TRANSFER AGENTS.

Signed certificates for shares in blank may be deposited with any transfer agent
of this Trust, to be used by the transfer agent in accordance with authority
conferred upon it as occasion may require, and in so doing the signers of such
certificates shall not be responsible for any loss resulting therefrom.



First Union 3-01 Exh (3)(a)             12

<PAGE>   18

SECTION 5.4.    TRANSFER ON RECORDS OF TRUST.

Shares shall be transferable on the records of the Trust (other than by
operation of law) only by the record holder thereof or by his agent hereunto
duly authorized in writing, upon delivery to the Trustees or a transfer agent of
this Trust of the certificate or certificates therefor, properly endorsed or
accompanied by duly executed instrument or instruments of transfer, together
with such evidence of the genuineness of each such endorsement, execution and
authorization and of other matters as may reasonably be required. Upon such
delivery the transfer shall be recorded on the register of the Trust and a new
certificate for the shares so transferred shall be issued to the transferee, and
in case of a transfer of only a part of the shares represented by any
certificate a new certificate for the residue thereof shall be issued to the
transferor. But until such record is made, the Beneficiary of record shall be
deemed to be the holder of such shares for all purposes hereof, and neither the
Trustees nor any transfer agent or registrar nor any officer or agent of this
Trust shall be affected by any notice of the proposed transfer.

SECTION 5.5.    TRANSFER BY OPERATION OF LAW.

Any person becoming entitled to any shares in consequence of the death,
bankruptcy or insolvency of any Beneficiary, or otherwise by operation of law,
shall be recorded as the holder of the said shares and receive a new certificate
for the same upon production of the proper evidence thereof and delivery of the
existing certificate to the Trustees or a transfer agent of this Trust. But
until such record is made, the Beneficiary of record shall be deemed to be the
holder of such shares for all purposes hereof and neither the Trustees nor any
transfer agent or registrar nor any officer or agent of this Trust shall be
affected by any notice of such death, bankruptcy, or insolvency.

SECTION 5.6.    JOINT OWNERS OF SHARES.

The Trustees may treat two or more persons holding any share as joint tenants of
the entire interest therein unless their ownership is expressly otherwise
recorded on the register of the Trust, but no entry shall be made in the
register or in any certificate that any person is in any other manner entitled
to any future, limited or contingent interest in any share; provided, however,
that any person recorded as a holder of any share may, subject to the provisions
hereinafter contained, be described in the register or in any certificate as a
fiduciary of any kind and any customary words may be added to the description of
the holder to identify the nature of such fiduciary relationship.




First Union 3-01 Exh (3)(a)             13
<PAGE>   19

SECTION 5.7.    DUTY OF TRUSTEES IN SHARE TRANSFERS.

The Trustees shall not, nor shall the Beneficiaries, or any officer, transfer
agent or other agent of this Trust or of the Trustees, be bound to see the
execution of any trust, express, implied or constructive, or of any charge,
pledge, or equity to which any of the shares in the Trust or any interests
therein are subject, or to ascertain or inquire whether any sale or transfer of
any such shares or interest therein by any Beneficiary or his personal
representatives is authorized by such trust, charge, pledge, or equity, or to
recognize any person as having any interest therein except for the person
recorded as such Beneficiary. The receipt of the person in whose name any share
is recorded, or, if such share is recorded in the name of more than one person,
the receipt of any such persons shall be a sufficient discharge for all
dividends and other money and for all shares, bonds, obligations and other
property payable, issuable, or deliverable in respect of such shares and from
all liability to see to the application thereof.

SECTION 5.8.    LOST CERTIFICATES.

In case of the loss, mutilation or destruction of any certificate for shares
hereunder, the Trustees may issue or cause to be issued a new certificate on
such terms as they may see fit.

SECTION 5.9.    REGULATIONS ON TRANSFER.

The Trustees may from time to time adopt such regulations as they see fit
relating to issue, transfer, recording and registry of shares and the effects
thereof, the issuance or prohibition of fractional shares, the use of scrip in
place of fractional shares and the Trustees, by provision in the By-Laws may
restrict or regulate issuance or transfer of shares in such manner as they, with
advice of counsel, shall deem advisable to prevent disqualification of the Trust
for taxation as a real estate investment trust under the Internal Revenue Code
and the regulations (proposed or in effect) thereunder; provided that the
Trustees shall not amend or waive Article VI, Section 6 of the By-Laws of the
Trust unless either (i) action is taken to so amend or waive by at least 70% of
the Trustees then in office or (ii) action is taken by a majority but less then
70% of such Trustees and such action is approved by the holders of at least 70%
of the outstanding shares.

ARTICLE VI
CHARACTERISTICS OF SHARES

SECTION 6.1.    TRUSTEES IN COMPLETE CONTROL.

The ownership of the Trust property of every description and the right to
conduct the affairs of the Trust are vested exclusively in the Trustees, and the
Beneficiaries shall have no legal title to the Trust property, their interest
being equitable only and limited to the beneficial interest conferred by their
shares issued hereunder, and they shall have no right to call for any partition
or division of any property, profits, rights, or interests of the Trust.



First Union 3-01 Exh (3)(a)             14
<PAGE>   20


SECTION 6.2.    TRUST NOT AFFECTED BY DEATH OF BENEFICIARY.

The death of a Beneficiary during the continuance of this Trust shall not
terminate the Trust nor give his or her legal representative a right to an
accounting or to take any action in the courts or otherwise against other
Beneficiaries or the Trustees or the property held hereunder, but shall simply
entitle the legal representatives of the deceased Beneficiary to demand and
receive a new certificate representing shares of beneficial interest in the
Trust in place of the certificate held by the deceased Beneficiary, and upon the
acceptance of which such legal representatives shall succeed to all the rights
of the deceased Beneficiary under the Trust.

SECTION 6.3.    SHARES HELD BY TRUST.

Shares issued hereunder and purchased or otherwise acquired by the Trustees for
the account of the Trust shall be canceled.

ARTICLE VII
MEETINGS OF BENEFICIARIES

SECTION 7.1.    ANNUAL AND SPECIAL MEETINGS CALL.

Annual meetings of the Beneficiaries shall be held at 2:00 P.M. Eastern Standard
Time on the second Tuesday of the fourth month following the end of each fiscal
year at such place as the Trustees may from time to time decide. Special
meetings of the Beneficiaries may be called at any time and place when ordered
by a majority of the Trustees, or upon the written request of the holders of
one-quarter of the outstanding shares, specifying the purpose or purposes for
which such meeting is called. If for any reason the annual meeting of the
Beneficiaries as herein provided for shall be omitted, a special meeting of the
Beneficiaries may subsequently be held in lieu thereof and the business of the
annual meeting may be transacted thereat.

SECTION 7.2.    NOTICE OF MEETINGS.

Notice of all annual and special meetings of the Beneficiaries shall be given by
a Trustee or other officer by mail to each Beneficiary at his address as
recorded in the register of the Trust, mailed at least ten days before the
meeting. No business shall be transacted at any special meeting of Beneficiaries
unless notice of such business has been given in the call for the meeting. Any
adjourned meeting may be held as adjourned without further notice. The holders
of shares entitling them to exercise a majority of the voting power of the Trust
present in person or by proxy shall constitute a quorum for any annual or
special meeting of Beneficiaries.

SECTION 7.3.    BENEFICIARIES CANNOT BIND TRUSTEES.

Except as provided in Articles VIII, X, and XI, no action taken by the
Beneficiaries at any meeting shall in any way bind the Trustees.




First Union 3-01 Exh (3)(a)             15
<PAGE>   21

SECTION 7.4.    CLOSING TRANSFER BOOKS - RECORD DATE.

For the purpose of determining the Beneficiaries who are entitled to receive
notice of, or to vote at, a meeting of Beneficiaries, or to receive payment of
any dividend or distribution, or to receive or exercise rights of purchase of or
subscription for, or exchange or conversion of, shares or other securities, the
Trustees may from time to time close the transfer books for such period not
exceeding twenty days as the Trustees may determine; or, without closing the
transfer books, the Trustees may fix a record date, which shall not be earlier
than the date on which the record date is fixed and shall not be more than sixty
days preceding the date of the meeting of the Beneficiaries or the date fixed
for the payment of any dividend or distribution, or the date for the receipt or
exercise of rights, as the case may be, as the record date for determination of
the Beneficiaries who are entitled to such notice or to vote at such meeting or
to receive payment of such dividend or distribution or to receive or exercise
such rights, and any Beneficiary who was a Beneficiary at the time so fixed
shall be entitled to such notice or to vote at such meeting or any adjournment
thereof, or to receive such dividend or distribution or to receive or exercise
such rights even though he has since that date disposed of his shares, and no
Beneficiary becoming such after such date shall be entitled to such notice,
vote, dividend, distribution or rights.

SECTION 7.5.    VOTING.

At any meeting of the Beneficiaries, any holder of shares entitled to vote
thereat may vote in person or by proxy. Only Beneficiaries of record shall be
entitled to vote. When any share is held jointly by several persons, any one of
them may vote at any meeting in person or by proxy in respect of such share, but
if more than one of them shall be present at such meeting in person or by proxy,
and such joint owners or their proxies so present disagree as to any vote to be
cast, no vote shall be received in respect of such share. If any such holder of
a share is a minor and subject to guardianship or is subject to the legal
control of any other person as regards the charge or management of such share,
he may vote by his guardian or such other person appointed or having such
control, and such vote may be given in person or by proxy.

SECTION 7.6.    REPORT AT ANNUAL MEETING.

At each annual meeting of the Beneficiaries the Trustees shall make a report
upon the affairs of the Trust and upon its business and operations, together
with a statement of its financial standing as shown by the books of account of
the Trust.

SECTION 7.7.    INSPECTION OF RECORDS.

Beneficiaries shall have the right, at reasonable times during business hours
and for proper purposes to inspect the records and books of account of the Trust
and the records of the meetings of the Beneficiaries and Trustees.




First Union 3-01 Exh (3)(a)             16
<PAGE>   22

ARTICLE VIII
TRUSTEES

SECTION 8.1.    NUMBER OF TRUSTEES.

The number of Trustees shall be not less than three nor more than fifteen, as
from time to time determined at annual or special meetings of the Beneficiaries
by affirmative vote of the holders of a majority of the shares represented and
entitled to vote at such meetings. Trustees shall be divided into three classes,
to be known as Class I, Class II and Class III. The classes shall be nearly
equal in size as possible. In case of any increase or decrease in the number of
Trustees, the additional or remaining Trustees, as the case may be, shall be
distributed among several classes as nearly equally as possible. A decrease in
the number of Trustees shall not shorten the term of any Trustee then in office.

A Trustee may be any individual (who is a citizen of the United States and not a
minor) or a corporation. Whenever there shall be a vacancy, until such a vacancy
is filled, the continuing or surviving Trustee or Trustees then in office shall
have all the powers granted to the Trustees and discharge all the duties imposed
upon the Trustees by this Declaration. A majority of the Trustees shall not be
affiliated with an adviser of the Trust or any organization affiliated with an
adviser of the Trust. The term "majority of the Trustees" whenever used herein
shall include one Trustee if only one Trustee is at the time in office
regardless of the fixed number of trusteeships.

SECTION 8.2.    ELECTION OF TRUSTEES; TERMS OF OFFICE

The term of office for each Trustee shall be three years and the members of one
class of Trustees shall be elected annually to serve for such term; except that,
initially or whenever necessary, a Trustee may be elected for a shorter term in
order to provide for a proper rotation of Trustees. A Trustee shall hold office
until the Annual Meeting of Shareholders coinciding with the termination of the
term of the class of Trustees to which he was elected and until his successor
shall be elected and qualified or until his earlier resignation, removal from
office or death.

At any meeting of the Beneficiaries at which Trustees are to be elected, only
persons nominated as candidates by Beneficiaries entitled to vote at such
meeting shall be eligible for election as Trustees. The election as Trustee of a
person who, at the time of his election, fails to meet the qualifications for
Trustees specified in this Declaration of Trust shall, unless within thirty days
thereafter such person meets such qualifications, be null and void and the
vacancy in the number of Trustees so created may be filled by the Trustees as
provided in Section 8.4 hereof.

At all elections of Trustees the candidates receiving the greatest number of
votes shall be elected.

SECTION 8.3.    RESIGNATION AND REMOVAL.

Any Trustee may resign his trust in instrument in writing signed by him and
delivered or mailed to the other Trustees at the principal office of the Trust,
and such resignation shall take effect



First Union 3-01 Exh (3)(a)             17
<PAGE>   23


immediately or at a later date according to the terms of the instrument. Any
Trustee may be removed at any time by written instrument signed by all the other
Trustees specifying the date when such removal shall become effective; provided,
however, that such removal shall not be effective until approved by affirmative
vote of the holders of a majority of the shares present or represented and
entitled to vote at a duly held meeting of the Beneficiaries call for the
purpose.

Any Trustee may also be removed by affirmative vote for his removal cast by a
majority of Trustees then in office if such Trustee does not meet the
qualifications for Trustees specified in this Declaration of Trust for more than
thirty (30) consecutive days during his term of office.

SECTION 8.4.    FILLING VACANCY.

In case a vacancy in the number of Trustees shall occur, the remaining Trustees,
though less than a majority of the whole authorized number of Trustees, may, by
a vote of a majority of their number, fill any vacancy in the Board of Trustees
for the unexpired term of the Trustee whose office has become vacant. No
appointment or election of a Trustee, other than reelection, shall become
effective until the person so appointed or elected shall have signed this
Declaration and an instrument bearing the acceptance of the person so appointed
shall have been acknowledged by one or more of the existing Trustees and
recorded in the manner provided in Section 11.5 hereof. Hereupon the Trust
property shall vest in the new Trustee jointly with the continuing Trustee or
Trustees without further act or conveyance.

SECTION 8.5.    TRUST CONTINUES.

The death, resignation, incompetency or removal of any one or more of the
Trustees shall not operate to annul the Trust or to revoke any existing agency
created pursuant to the terms of this Declaration or invalidate any action
theretofore taken by the Trustees.

SECTION 8.6.    TRUSTEES' MEETINGS AND ACTION.

The Trustees may act with or without a meeting. Meetings of the Trustees shall
be called and held as provided in the By-Laws. Notice of any meetings may be
waived by any Trustee either before or after such meeting. The concurrence of
all the Trustees shall not be necessary for the validity of any action taken by
them, but a decision expressed in a vote passed at a meeting by a majority of
the Trustees present, or expressed in writing signed by a majority of the
Trustees without a meeting, shall constitute the action of the Trustees and have
the same effect as if assented to by all. At any meeting a majority of the
Trustees shall constitute a quorum. Any deed, mortgage, lease or other
instrument or writing executed by any Trustee or officer of the Trust shall be
valid and binding upon the Trustees and upon the Trust if such Trustee or
officer acted under authority granted by the Trustees by a vote or writing
passed or signed as above provided.

In the event that any Trustee or Trustees shall notify the other Trustees in
writing that they do not wish to participate in the approval or disapproval of
any particular matter presented to the



First Union 3-01 Exh (3)(a)             18

<PAGE>   24

Trustees, a majority of the other Trustees shall have authority to act for the
Trust with respect to such matter.

SECTION 8.7.    TRUSTEES' COMPENSATION.

The Trustees shall receive reasonable compensation for their services as
Trustees and officers hereunder as fixed by the Trustees.

SECTION 8.8.    BY-LAWS OF TRUST.

The By-Laws shall be as set forth in Exhibit A attached to this Declaration. The
Trustees may from time to time amend or repeal said By-Laws which may, among
other things, provide for the conduct of their business, define the duties of
the officers, agents, employees and representatives and provide for their
appointment, number and qualification, fix the time, place and notice of
meetings of the Trustees, provide for the form of certificates representing
shares of beneficial interest and regulate or restrict issuance or transfer of
shares as provided in Section 5.9 of this Declaration.

SECTION 8.9.    EXECUTIVE COMMITTEE.

The Trustees, acting unanimously, may appoint from among their own number an
executive committee of two or more persons to whom they, acting unanimously, may
delegate such of the powers herein given to the Trustees as they may deem
expedient, except as herein otherwise provided.

SECTION 8.10.   TRUSTEE'S OTHER BUSINESS ACTIVITIES.

Each Trustee may, from time to time, for his own account engage in, or directly
or indirectly be interested in, business activities of the types conducted or to
be conducted by the Trust; provided however, that any person who owns, directly
or indirectly, more than one percent 1% of the securities of, or acts as an
officer, trustee, director, employee of or consultant for, or is otherwise
affiliated with or controlled by, any real estate investment trust, or any other
real estate company (a) that competes with the Trust for investments, (b) that
is a major supplier of services to the Trust, or (c) in which the Trust has a
significant financial interest, or any person who is an agent of, or is
otherwise affiliated with or controlled by any such person, shall not be
qualified to serve as a Trustee.

ARTICLE IX
DISTRIBUTIONS TO BENEFICIARIES

SECTION 9.1.    TRUSTEES MAY MAKE DISTRIBUTIONS.

The Trustees may from time to time distribute ratably among the Beneficiaries
such proportion of the cash available from operations of the Trust, net profits,
surplus (including paid-in surplus)



First Union 3-01 Exh (3)(a)             19

<PAGE>   25

or capital or assets of the Trust as they may deem proper, and such distribution
may be made in cash or in property (including any type of obligation of the
Trust or any assets thereof); and the Trustees may distribute ratably among the
Beneficiaries additional shares issuable hereunder in such manner and on such
terms as the Trustees may deem proper. In making such distributions the Trustees
shall be guided by the requirements for qualification of the Trust as a "real
estate investment trust" under provisions of the Internal Revenue Code, as now
enacted or as may hereafter be amended from time to time, but nevertheless the
amount of all distributions and the time of declaration and payment thereof
shall be wholly in the discretion of the Trustees, as shall also the
determination of what constitutes cash available from operations of the Trust,
net profits or surplus. Such distributions may be among the Beneficiaries of
record at the time of declaring a distribution or among the Beneficiaries of
record at such other date (not more than thirty days prior to payment of such
distribution) as the Trustees shall determine.

SECTION 9.2.    RETAINED AMOUNTS.

The Trustees may always retain from the net profits or cash receipts such amount
as they may deem necessary to pay the debts or expenses of the Trust or to meet
obligations of the Trust, or as they may deem desirable to use in the conduct of
its affairs or to retain for future requirements or extensions of the business.

SECTION 9.3.    INFORMATION TO BENEFICIARIES.

The Trust shall furnish to the Beneficiaries from time to time such statements,
certificates or other information as is then required by the law, or regulation
thereunder, applicable to a "real estate investment trust" qualifying as such
under the Internal Revenue Code.

ARTICLE X
AMENDMENT OF TRUST

SECTION 10.1.   AMENDMENT.

At any time when no shares in the Trust are outstanding, the Trustees may amend
any provisions of this Declaration. A certificate signed by a majority of the
Trustees, setting forth such amendment and reciting that it was duly adopted by
the Trustees, or a copy of the Declaration as amended executed by a majority of
the Trustees, shall be recorded as provided in Section 11.5 hereof and lodged
among the records of the Trust and shall be conclusive evidence of such
amendment.

At any time when shares in the Trust are outstanding, the Trustees may amend the
Declaration in any particular, except with respect to the liability of
beneficiaries, with the approval of the owners of a majority of all the shares
in the Trust, in writing or by vote at a meeting of the Beneficiaries, provided
that the notice of the meeting shall have set forth the nature of the proposed
amendment. A certificate signed by a majority of the Trustees setting forth an
amendment and reciting that it was duly adopted by the Trustees and approved as
aforesaid, or a



First Union 3-01 Exh (3)(a)             20

<PAGE>   26

copy of the Declaration as amended executed by a majority of the Trustees, shall
be recorded as provided in Section 11.5 hereof and lodged among the records of
the Trust and shall be conclusive evidence of such amendment.

Notwithstanding the foregoing (and notwithstanding the fact that some lesser
percentage may be permitted by Law), the approval of the owners of at least 70%
of the outstanding shares of the Trust shall be required to amend or repeal
Sections 5.9, 8.1, 8.2, 8.4, 11.19, 12.2 and this Section 10.1 of this
Declaration unless at least 70% of the Trustees have voted to amend or repeal
such sections, in which event the approval of the owners of only a majority of
the outstanding shares shall be required.

ARTICLE XI
MISCELLANEOUS

SECTION 11.1.   FAILURE TO QUALIFY AS REAL ESTATE INVESTMENT TRUST.

The failure of the Trust to qualify as a "real estate investment trust" under
the Internal Revenue Code shall not render the Trustees liable to the
Beneficiaries or to any other person or in any manner operate to annul the
Trust.

SECTION 11.2.   LAWS OF OHIO GOVERN.

This instrument is executed by the Trustees and delivered in the State of Ohio
and with reference to the laws thereof, and the rights of all parties and the
construction and effect of every provision hereof shall be subject to and
construed according to the laws of said State. The Trust will not, in dealing
with any Trustee, investment adviser, officer or employee of the Trust enter
into any transactions contrary to the obligations imposed upon trustees by
courts of equity of the State of Ohio.

SECTION 11.3.   COUNTERPARTS.

This Declaration may be simultaneously executed in several counterparts, each of
which so executed shall be deemed to be an original, and such counterparts,
together, shall constitute but one and the same instrument, which shall be
sufficiently evidenced by any such original counterpart.



First Union 3-01 Exh (3)(a)             21

<PAGE>   27

SECTION 11.4.   CERTIFICATIONS.

Any certificate signed by a person (who according to the records of the Trust
appears to be a Trustee hereunder) concerning the number or identity of Trustees
or Beneficiaries, showing that the execution of any instrument or writing has
been duly authorized, showing the form of any vote passed at a meeting of
Trustees or Beneficiaries, the fact that the number of Trustees or Beneficiaries
present at any meeting or executing any written instrument satisfied the
requirements of this Declaration of Trust, the form of any by-laws adopted by or
the identity of any officer appointed by the Trustees or the existence or
non-existence of any fact or facts which in any manner relate to the affairs of
the Trust shall be conclusive evidence as to the matters so certified in favor
of any person dealing with the Trustees, or any one or more of them, and the
successors of such person.

SECTION 11.5.   RECORDING.

This Declaration of Trust, any amendment thereof, evidence of any change of
Trustees and of the By-Laws and amendments thereto, and evidence of
effectiveness of Section 11.10 shall, and any other matters relating to the
Trust or its officers, Trustees or powers may be recorded with the Trust's
Transfer Agent or such other bank or trust company as the Trustees shall from
time to time designate. Anyone dealing with the Trust may rely conclusively upon
such recording and instruments so recorded, and on any certificate of the kind
described in Section 11.4 hereof which is signed by a person who according to
such recording appears to be a Trustee hereunder.

SECTION 11.6.   ANNUAL FINANCIAL STATEMENTS.

The Trustees shall cause to be prepared for each fiscal year of the Trust an
annual report consisting of a detailed statement of the activities of the Trust
during each such fiscal year and a balance sheet and a statement of income and
surplus of the Trust, which financial statement shall contain an opinion thereon
of an independent certified accountant or independent public accountant based on
an examination of the records and books of account of the Trust made in
accordance with generally accepted auditing procedures. A copy of such annual
report shall be delivered to each Beneficiary hereunder within ninety days after
the close of the period covered by the report and prior to the annual meeting of
Beneficiaries for the next fiscal year following the close of such period. A
manually signed copy of the report shall also be filed with the Trustees. In
addition, the Trustees shall cause to be prepared and delivered to Beneficiaries
hereunder interim financial reports, at least quarterly containing a current
balance sheet which may be unaudited.



First Union 3-01 Exh (3)(a)             22

<PAGE>   28

SECTION 11.7.   INFORMATION ON SHARE OWNERSHIP.

Every Beneficiary shall be obligated to furnish to the Trustees upon demand a
written statement disclosing the actual and constructive (as the terms "actual"
and "constructive" are defined for purposes of the "real estate investment
trust" provisions in the Internal Revenue Code and the regulations proposed or
in effect thereunder) ownership of the shares registered in the name of such
Beneficiary. A list of the Beneficiaries failing or refusing to comply in whole
or in part with a demand of the Trustees for such written statement shall be
maintained by the Trustees as part of the records of the Trust. The Trustees may
establish such requirements as to furnishing of information as to actual or
constructive ownership of shares as they may from time to time deem advisable
and may, under provision in the By-Laws, condition the issuance of certificates
and registration of ownership of shares in the name of any person upon the
furnishing of such information and on such information showing that issuance of
the certificate and registration of such person as a Beneficiary will not, in
the opinion of counsel for the Trust, result in the Trust becoming disqualified
for taxation as a real estate investment trust under the Internal Revenue Code.

SECTION 11.8.   FISCAL YEAR.

The Trustees may establish a fiscal year and from time to time alter or change
the same.

SECTION 11.9.   NOTICES.

Notices delivered or sent by mail to any Beneficiary at his last address of
record as shown by the register of the Trust shall be deemed properly delivered
and be binding upon all parties.

SECTION 11.10.  CONTINGENT POWERS OF BENEFICIARIES.

If, in the opinion of counsel for the Trust delivered to the Trustees, this
Declaration may contain the following provision without causing the
Beneficiaries to be personally liable for the obligations of the Trust and
without impairing the right of the Trust to continue to do business or own
property under the applicable laws in the states in which it is at the time
doing business, and without preventing the Trust from qualifying as a "real
estate investment trust" under the Internal Revenue Code as amended and the
Regulations thereunder, then such provision shall be deemed to be included in
this Declaration and to be controlling over any inconsistent provision. Upon the
delivery of any such opinion of counsel, the Trustees shall cause an instrument
in writing, setting forth such delivery and the effectiveness of this Section
11.10 to be acknowledged by one or more of the Trustees and recorded as provided
in Section 11.5 hereof.

This Declaration may be amended or altered, except as to the exemption from
personal liability of Trustees and Beneficiaries and the prohibition of
assessments upon Beneficiaries, at any meeting of the Beneficiaries called for
the purpose by the affirmative vote of the holders of not less than
three-fourths of the shares entitled to vote at the meeting.




First Union 3-01 Exh (3)(a)             23


<PAGE>   29

Prior to each annual meeting of the Beneficiaries the Trustees shall request the
opinion of counsel for the Trust whether, under the applicable laws in the
states in which the Trust is then doing business or owns property, this
Declaration of Trust may contain the foregoing provision without causing the
Beneficiaries to be personally liable for the obligations of the Trust, without
impairing the right of the Trust to continue to do business under the laws of
such states, and without preventing the Trust from qualifying as a "real estate
investment trust" under the Internal Revenue Code as amended and the Regulations
thereunder.

SECTION 11.11.  INVESTMENT POLICY.

The initial investment of the Trust shall consist of the Union Commerce Building
which shall be subject to a net lease to The Union Commerce Bank on the terms
described in Registration Statement File Number 2-18814, as from time to time
amended, and exhibits thereto filed with the Securities and Exchange Commission.
The Trustees in office are authorized in their sole discretion to determine the
final terms of purchase of said property and lease of the same and to effect
such purchase and lease for the Trust.

After the initial investment, the Trustees shall be guided by the following
investment policy:

Investments by the Trust shall be directed primarily to the acquisition and
holding of income-producing real estate used for industrial, commercial, or
multiple family residential purposes.

Special emphasis is to be given to favorably located properties which may be
subjected to a net lease to a single tenant which has sufficient resources to
give substantial security to its rental commitments under such net lease and
which would itself occupy the premises or would sublet rental space. Investments
by the Trust may also include properties which offer opportunities for a higher,
but less secure, return. In general, the Trust will not invest in unimproved
real property or in leaseholds on which permanent buildings have not been
completed and will confine its investments in industrial property to those which
can be leased on a long term basis to a financially responsible single tenant.

The Trust will purchase properties for long term investment and will not engage
in short term sales and purchases unless the nature of particular properties
indicates special reasons for believing that the proceeds of their sale might
better be invested in other properties.

The Trust may engage in mortgage financing of its acquisitions where the same
appears feasible and advantageous, and may pledge the individual properties so
acquired or its other properties under such mortgages. However, the Trust will
not borrow maximum percentages of purchase prices or take any other steps which
would give the Trust securities a high leverage.

The Trust will generally use, as a charge against its income, straight line
depreciation based on its best estimate of the useful life of each property. If
in particular cases the use of accelerated depreciation appears advisable, the
Trust may use that method in particular cases. The Trust policy regarding
depreciation and sales of property may in the future be affected by changes in


First Union 3-01 Exh (3)(a)             24



<PAGE>   30


the laws and regulations of the United States and its political subdivisions,
particularly those relating to federal income taxes, and such policy may be
adjusted in the light of any such changes.

The Trust will not engage in underwriting securities of other issuers, will not
invest substantially in securities of other issuers for the purpose of
exercising control or in securities of or interests in persons primarily engaged
in real estate activities, will not make loans to other persons, and will not
invest in real estate mortgages; provided, however, that this paragraph shall
not apply to or prevent investment in shares (or transferable certificates of
beneficial interest) in other real estate investment trusts which meet the
requirements of Part II of Subchapter M of Chapter I of Subtitle A of the
Internal Revenue Code, or other securities the holdings of which would not
disqualify the Trust as a real estate investment trust under said Part II.

The Trust may from time to time borrow money on a short term basis in addition
to long term mortgage financing. Ordinarily the Trust will acquire investments
for cash with or without mortgage financing. If it seems advisable, however,
future acquisitions may be financed in whole or in part, by the issuance of
shares or senior securities which may or may not be convertible and may or may
not be accompanied by share purchase warrants. The Trust may also pay for
investments by exchanging properties.

United States Government obligations, Ohio bank accounts, and state or municipal
obligations may be held as a means of providing liquid assets for contingencies
and future investment, but any such investment will be on a temporary basis,
will not be in amounts which would in the opinion of counsel for the Trust
disqualify the Trust for treatment as a "real estate investment trust" under the
Internal Revenue Code and Regulations (proposed or in effect) thereunder, and
will not be of a type which would in the opinion of counsel for the Trust
prevent exemption of the shares from the Ohio Intangibles Tax.

There is to be no restriction on the portion of the Trust's assets which may be
invested in any particular type of real estate or in any single property.
Generally, investment in assets other than real estate will not at any time
exceed 10% of the Trust's.

The Trust may make investments in any state of the United States and any other
jurisdiction where, in the opinion of counsel for the Trust, the Trust may
legally operate without affecting the limited liability of the shareholders
except in respect to tort claims, contract claims where shareholder liability is
not negated, claims for taxes and certain statutory liabilities.







First Union 3-01 Exh (3)(a)             25


<PAGE>   31

SECTION 11.12.  NOTICES ON DISTRIBUTIONS.

All distributions to beneficiaries shall be accompanied by a written statement
advising of the sources of funds or properties so distributed. In case there is
any doubt as to such source the communication may so state, and, in such event,
a further statement shall be mailed to Beneficiaries not later than sixty (60)
days after the close of the fiscal year of the Trust in which the distribution
was made. Such statements may be based on the figures shown by the books of
account of the Trust.

SECTION 11.13.  TRANSACTIONS WITH INTERESTED PARTIES.

No Trustee, officer or adviser of the Trust, or any person affiliated with any
such persons, shall sell any property or assets to the Trust or purchase any
property or assets from the Trust, directly or indirectly, nor shall any such
person receive any commission or any other remuneration, directly or indirectly,
in connection with the purchase or sale of Trust assets, except pursuant to
transactions that are fair and reasonable to the shareholders of the Trust and
that relate to: (a) the acquisition by the Trust of federally insured or
guaranteed mortgages at prices not exceeding the currently quoted prices at
which the Federal National Mortgage Association is purchasing comparable
mortgages; (b) the acquisitions of other mortgages on terms no less favorable
than similar transactions involving unaffiliated parties; or (c) the acquisition
by the Trust of other property at prices not exceeding the fair value thereof as
determined by independent appraisal. All such transactions and all other
transactions in which any such persons have any direct or indirect interest
shall be approved by a majority of the Trustees, including a majority of the
independent Trustees. If the Trust has an adviser, all commissions or
remuneration received by any such persons in connection with any such
transactions shall be deducted from the advisory fee.

SECTION 11.14.  ADVISERS.

Subject to the provisions of this Declaration, the Trustees may employ any
person, firm or corporation as adviser. Any advisory contract shall be for a
period not longer than one year. Any such advisory contract shall provide that
it may be terminated at any time, without penalty, by the Trustees or by the
holders of majority of the outstanding shares of beneficial interest upon not
less than 60 days' written notice to the adviser.





First Union 3-01 Exh (3)(a)             26

<PAGE>   32

SECTION 11.15.  LIMITATION ON EXPENSES.

The aggregate annual expenses of every character paid or incurred by the Trust,
excluding interest, taxes, expenses in connection with the issuance of
securities, shareholder relations, acquisition, operation, maintenance,
protection and disposition of Trust properties, but including advisory fees and
mortgage servicing fees and all other expenses, shall not exceed the greater of:
(a) 1-1/2% of the average net assets at cost before deducting depreciation
reserves, less total liabilities, calculated at least quarterly on a basis
consistently applied; or (b) 25% of the net income of the Trust, excluding
provision for depreciation and realized capital gains and losses and
extraordinary items, and before deducting advisory and servicing fees and
expenses, calculated at least quarterly on a basis consistently applied; but in
no event shall aggregate annual expenses exceed 1-1/2% of the total invested
assets of the Trust. If the Trust has an adviser, the adviser shall reimburse
the Trust for the amount by which aggregate annual expenses paid or incurred by
the Trust as defined herein exceed the amounts herein provided.

SECTION 11.16.  APPRAISALS.

The consideration paid for real property acquired by the Trust after its initial
investment in the Union Commerce Building shall be based upon the value of the
property to the Trust as determined by the Trustees on the basis of a real
estate appraisal prepared by a qualified, disinterested, independent appraiser.

SECTION 11.17.  PROHIBITED INVESTMENTS.

The Trust shall not invest in (a) mortgages, land contracts, unimproved real
property which in the aggregate exceed 5% of its gross assets, as shown on its
books at the time of such investment (b) real property subject to a mortgage
other than an insurance company, bank or institutional lender and then only if,
on the basis of independent appraisal, the unpaid balance of such mortgage does
not exceed 2/3 of the fair market value, (c) securities in any company holding
investments or engaging in activities prohibited by this Declaration for this
Trust, or (d) commodities.

SECTION 11.18.  PROHIBITED ACTIVITIES.

The Trust shall not do any of the following: (a) engage in any short sale,
borrow unsecured more than 8% of its net worth or encumber any of its real
property for more than 2/3 of the fair market value of such property as shown by
independent appraisal, (b) engage in trading activities, (c) issue more than one
class of securities or securities redeemable at the option of the holder, except
that the Trust may issue securities evidencing borrowing secured by real estate
not in excess of 2/3 of the value of such security as determined by independent
appraisal, (d) engage in distribution of securities issued by others, or
(e)issue warrants, options, or similar evidence of a right to buy Trust
securities other than to all shareholders ratably.





First Union 3-01 Exh (3)(a)             27
<PAGE>   33

SECTION 11.19.  QUALIFICATION AS A REAL ESTATE INVESTMENT TRUST.

No Trustee and no Beneficiary shall take any action which would cause the Trust
to abandon its purpose of providing an investment vehicle for numerous
shareholders with small holdings or which would, in the opinion of counsel for
the Trust, furnished prior to such action, prevent the Trust from qualifying or
continuing to qualify as a "real estate investment trust" under the Internal
Revenue Code and the Regulations (proposed or in effect) thereunder unless at
least a majority of the Trustees then in office have approved such action. No
Beneficiary shall have any power to control the Trustees or the affairs of this
Trust, or to exercise any voting or approval powers, if such powers would at the
time in the opinion of counsel for the Trust (a) prevent the Beneficiaries from
being free from personal liability for the obligations of the Trust under any
applicable law, or (b) cause the Trust to be an illegal or invalid organization
under the law of any jurisdiction in which it owns property or does business.

SECTION 11.20.  PURPOSE OF ARTICLE AND SECTION HEADINGS.

The Article and Section headings inserted in this Declaration are for
convenience of reference and are not to be taken or affect the meaning,
construction, or effect of any provision hereof.

SECTION 11.21.  CONTROLLING EFFECT OF ARTICLE XI.

The provisions of this Article XI shall be controlling in all respects over any
other provisions of this Declaration.

SECTION 11.22.  TRUSTEES' POWER TO INCUR INDEBTEDNESS AND OTHER OBLIGATIONS -
LIMITATIONS THEREON.

Notwithstanding anything to the contrary in this Declaration of Trust, the
Trustees may issue, assume, incur or secure Indebtedness or shares or other
securities of any class or classes which may or may not have preferences or
restrictions not applicable to "Shares of Beneficial Interest, $1 Par Value"
subject only to the limitations of clause (b) of this Section 11.22. The terms
of Indebtedness and shares or other securities shall be determined by the
Trustees at or before incurring or issuing the same and may include any terms
deemed advisable by the Trustees including, but not limited to, dividend or
interest rates, dividend restrictions and priorities, conversion rights and
prices, voting rights, redemption rights and prices, maturity dates, provisions
for acceleration of maturity, rights on liquidation, subordination provisions,
sinking fund provisions, remedies on default and other provisions. The
obligations of the Trust under Indebtedness or shares or other securities may be
secured in any manner determined by the Trustees. All or part of the properties
of the Trust may be subjected to, or may be acquired subject to, mortgage or
pledge to secure Indebtedness (within the limitations on the same provided in
this Section 11.22) without regard to the extent of the encumbrance in relation
to the value of the individual properties.



First Union 3-01 Exh (3)(a)             28


<PAGE>   34

The Trustees shall not without the same shareholder approval that would be
required for amendment of this Declaration of Trust, issue, assume or incur
Indebtedness:

(a)      if, immediately after issuing, assuming or incurring the same, the
outstanding Indebtedness would exceed 83-1/3% of the value of the assets of the
Trust, which shall be conclusively deemed to be that determined by the Trustees
except that in connection with any issue of bonds or debentures representing a
debt of more than 10% of the book value of the assets of the Trust before
deducting depreciation, the value of the land and buildings of the Trust shall
be as determined by an independent appraiser chosen by the Trustees

(b)      unless the existing cash flow of the Trust, or the reasonably projected
future cash flow of the Trust, excluding extraordinary items, is sufficient to
cover the interest on the Indebtedness.

As used in this Section 11.22, "Indebtedness" means all liabilities which would
be included as liabilities in accordance with generally accepted accounting
principles in effect at February 12, 1974, but not including items constituting
"Shareholders' Equity and reserve.

Compliance with the 83-1/3% limitation in this Section 11.22 may be determined
at any time by a national accounting firm designated by the Trustees and such
determination shall be conclusive. In making such determination the accounting
firm may rely upon certificates of the Chairman or Secretary of the Trust or
appraisers or other experts as to factual matters or as to the determination of
fair value of the assets of the Trust by the Trustees and, as to legal matters,
said accounting firm may rely upon the opinion of counsel for the Trust.

SECTION 11.23.  TRUSTEES' POWER TO INVEST IN NEW BUILDINGS AND PARTNERSHIPS,
JOINT VENTURES AND UNIMPROVED LAND FOR NEW BUILDINGS.

Notwithstanding anything to the contrary contained in this Declaration of Trust,
the Trustees shall have power to acquire an interest or interests in improved or
unimproved real estate or leaseholds or in partnerships, joint ventures,
corporations or other associations owning improved or unimproved real estate or
leaseholds and having as their principal purpose the development of real estate
into income producing property; provided however, that, (a) the Trustees shall
not have power to make such investment in such unimproved property or in such
partnership, joint venture, corporation, or other association owning unimproved
property, unless such unimproved property is acquired or held for purposes of
development into income producing property within a reasonable period of time or
is acquired or held incidental to income producing property and (b) the Trustees
shall have no power to make such investment in a partnership, joint venture or
similar association unless the Trust shall have received an opinion of counsel
to the effect that the Trust will not be liable for the obligations or
liabilities of the partnership, joint venture or similar association and that
the investment will not result in disqualification of the Trust as a real estate
investment trust under the Internal Revenue Code.

In connection with the incurring of indebtedness or issue of securities, and
notwithstanding provisions of Section 10.1, the Trustees, without shareholder
approval, may impose any


First Union 3-01 Exh (3)(a)             29

<PAGE>   35

restrictions which they deem advisable on the powers
granted by Section 11.23 and may make such restrictions part of the Declaration
of Trust.

SECTION 11.24.  TRUSTEES' POWER TO INVEST IN REAL ESTATE MORTGAGES AND IN
CERTAIN EVIDENCES OF INDEBTEDNESS.

Notwithstanding anything to the contrary contained in this Declaration of Trust,
the Trustees shall have the power (a) to invest in real estate mortgages without
limitation as to amount and (b) in addition to those temporary investments
authorized by the ninth paragraph of Section 11.11 hereof to invest in or
acquire and hold evidences of indebtedness having a period remaining to
maturity, at the time of investment or acquisition, of not more than two (2)
years. Investment in or acquisition of evidences of indebtedness is authorized
hereunder only in the amounts which would not in the opinion of counsel of the
Trust disqualify the Trust for treatment as a "real estate investment trust"
under the Internal Revenue Code and Regulations (proposed or in effect)
thereunder. The Trustees are hereby empowered, whether by amendment to this
Section by action of the Trustees or otherwise, to place limitations on the
authorizations set forth in the first sentence hereof if in their judgment such
limitations are necessary or desirable in connection with the incurring of
indebtedness or issuance of securities by the Trust, or in connection with
qualification by the Trust to do business in any state. To the extent that this
provision is inconsistent with the other terms of this Declaration of Trust,
including without limitation Sections 11.11 (Investment Policy) and 11.17
(Prohibited Investments), and Article X (Amendment of Trust), this provision
shall prevail.

SECTION 11.25.  OPTIONS RESPECTING TRUST SECURITIES.

Notwithstanding anything to the contrary contained in this Declaration of Trust,
including without limitation the provisions of subsection 11.18(e) hereof, the
Trust may from time to time grant options, warrants or other rights to purchase
securities of the Trust. The Trustees are hereby empowered, whether by amendment
to this Section by action of the Trustees or otherwise, to place limitations on
the authorizations set forth in the first sentence hereof if in their judgment
such limitations are necessary or desirable in connection with the incurring of
indebtedness or issuance of securities by the Trust, or in connection with
qualification by the Trust to do business in any state. To the extent that this
provision is inconsistent with the other terms of this Declaration of Trust,
including without limitation Article X (Amendment of Trust), this provision
shall prevail.

SECTION 11.26.  AUTHORITY OF TRUSTEES TO AUTHORIZE ADDITIONAL RESTRICTIONS.

The Trustees are hereby empowered, by amendment to this Declaration of Trust
without shareholder action, or by agreement or otherwise, to place limitations
on the authority of the Trustees if in their judgment such limitations are
necessary or desirable in connection with the incurring of indebtedness or
issuance of securities by the Trust or in connection with the Trust's entering
into any contract or agreement or doing business in any state.




First Union 3-01 Exh (3)(a)             30

<PAGE>   36

SECTION 11.27.  AUTHORITY OF TRUSTEES TO AUTHORIZE CERTAIN INVESTMENT, FINANCING
AND OTHER ACTIVITIES.

Notwithstanding anything to the contrary in this Declaration of Trust, the
Trustees are hereby empowered to authorize the following activities in
connection with the investment or financing of the assets of the Trust: making
loans to other persons, notwithstanding the provisions of Section 11.11; making
investments in real estate mortgages regardless of maturity, notwithstanding the
provisions of Sections 11.11 and 11.24; investing in excess of 10% of its assets
in assets other than real estate, notwithstanding the provisions of Section
11.11; purchasing assets without the necessity of obtaining a real estate
appraisal prepared by a qualified, disinterested, independent appraiser,
notwithstanding the provisions of Section 11.16; investing in mortgages, land
contracts or unimproved property which in the aggregate exceed 5% of its assets,
notwithstanding the provisions of Section 11.17; investing in real property
subject to a mortgage even if the unpaid balance of such mortgage exceeds
two-thirds of the fair market value of the real property, notwithstanding the
provisions of Section 11.17; effectuating short sales of securities,
notwithstanding the provisions of Section 11.18; borrowing unsecured more than
8% of its net worth or encumbering any of its real property for more than
two-thirds of the fair market value of such property, notwithstanding the
provisions of Section 11.18; issuing securities evidencing borrowings secured by
real estate in excess of two-thirds of the value of such security,
notwithstanding the provisions of Section 11.18; and making investments in
unimproved property or in a partnership, joint venture, corporation or other
association owning unimproved property without receiving an opinion of counsel
with respect thereto to the effect that the Trust will not be liable for the
obligations or liabilities of the partnership, joint venture or association and
the investment will not result in disqualification of the Trust as a real estate
investment trust under the Internal Revenue Code, notwithstanding the provisions
of Section 11.23.

ARTICLE XII
DURATION OF THE TRUST

SECTION 12.1.   TERM OF TRUST.

This Trust shall continue without limitation of time, except that (a) the Trust
is subject to termination pursuant to Sections 2.8 or 12.2 or, when applicable,
Section 11.10, and (b)in the event that Ohio Revised Code, Section 2131.08, or
any other statute or rule of law shall provide that the Trust may not continue
perpetually, then the Trust shall continue for the longest period of time
permitted by law, unless sooner terminated as herein provided, and to the extent
that measuring lives in being are required to determine the term of the Trust,
such measuring lives in being shall be the following persons living at the time
of the execution of this Declaration, and the Trust shall in such event continue
until the death of the last survivor of them plus such maximum additional period
of years as is permitted by law, unless sooner terminated as herein provided:
Robert F. Black, James D. Ireland, Gilbert H. Scribner, Stuart F. Silloway,
Russell J. Olderman and the following:



First Union 3-01 Exh (3)(a)             31

<PAGE>   37



<TABLE>
<S>                                  <C>                                     <C>
Karen Fredonia Black                    Sharron Pendleton Black                 Elizabeth Harrison Black
Robert Fager Black III                  Michael Frazer Black                    Elizabeth Frazer Vehring
Pamela Harrow Vehring                   Alexander Todd Vehring                  Tracy Leseure Yeomans
Patricia Yeomans                        Richard Black Yeomans                   Jeanne Carol Olderman
Helen Eaton Scribner                    Nancy Van Dyke Scribner II              Wm. Van Dyke Scribner II
William Gilbert Smith                   Edith Goodrich Kirk                     Nancy V. D. Kirk
William Douglass Kirk, Jr.              Donald Scribner Kirk                    Robert D. Judson, Jr.
Gilbert Hilton Judson                   Douglas Stahl Judson                    Duncan Scribner Judson
Frank Van Dyke Judson                   Hunter Romeyn Judson                    Carol Yeomans
Jill Francis Olderman                   Virgina Kraft Olderman
</TABLE>

SECTION 12.2.   MERGER; SALE OF TRUST PROPERTY.

No merger of the Trust into another entity or no consolidation or combination of
the Trust with one or more other entities shall be made without the consent of
the holders of at least (i) a majority of the outstanding shares if at least 70%
of the Trustees have approved such action or (ii) 70% of the outstanding shares
if at least a majority but less than 70% of the Trustees have approved such
action, in either case given at a meeting of the shareholders held for that
purpose; provided that no vote of Trust shareholders shall be required with
respect to any merger intended merely to change the Trust from a trust entity to
a corporation and provided further that no vote of Trust shareholders shall be
required with respect to a merger of the Trust with another entity if the Trust
would be the surviving entity and if, after the transaction, no shareholder
would be in violation of any limitation on share ownership adopted pursuant to
Section 5.9. The Trustees shall have the power to sell, exchange transfer or
otherwise dispose of any or all Trust property upon approval of at least a
majority of the Trustees.

SECTION 12.3.   LIQUIDATION.

On disposal of the Trust property pursuant to Sections 2.8, 11.10 or 12.2, the
Trustees shall make provision for the payment of all outstanding obligations,
taxes and other liabilities, accrued or contingent, of the Trust, and shall then
distribute the remaining assets of the Trust ratably among the holders of the
outstanding shares. Upon completion of the distribution of such remaining
assets, the Trust shall terminate and the Trustees shall be discharged of any
and all further liabilities and duties hereunder and the right, title and
interest of all parties shall be canceled and discharged. The powers of the
Trustees shall continue until the affairs of the Trust shall have been wound up
and all obligations discharged.


First Union 3-01 Exh (3)(a)             32
<PAGE>   38



         IN WITNESS WHEREOF, the undersigned, being all of the Trustees of First
Union Real Estate Equity and Mortgage Investments, have hereunto set their hands
to this Amended and Restated Declaration of Trust this 10th day of April, 2001,
and hereby certify that the Trustees amended and restated the Declaration of
Trust with the approval of the owners of a majority of the shares of beneficial
interest in the Trust on March 6, 2001, and that this Amended and Restated
Declaration of Trust sets forth each and every provision of this Declaration as
amended through March 6, 2001, and further certify that the Trustees named on
the first page of this Declaration constitute all the present Trustees of the
Trust.

<TABLE>
<S>                                                       <C>
          /s/ William A. Ackman                                /s/ William A. Scully
         --------------------------------------------         -----------------------------------
               William A. Ackman                                   William A. Scully

          /s/ Daniel J. Altobello                              /s/ Jeffrey P. Citrin
         --------------------------------------------         --------------------------------------------
               Daniel J. Altobello                                 Jeffrey P. Citrin

          /s/ Bruce R. Berkowitz                               /s/ Steven S. Snider
         --------------------------------------------         --------------------------------------------
                Bruce R. Berkowitz                                 Steven S. Snider

          /s/  Talton R. Embry
         --------------------------------------------
                Talton R. Embry

         Signed in the Presence of:

          /s/ F. Ronald O'Keefe
         ----------------------
         F. Ronald O'Keefe
</TABLE>

STATE OF NEW YORK   )
                    ) SS:
COUNTY OF NEW YORK  )

BEFORE ME, David S. Klafter, the undersigned, personally appeared William A.
Ackman, Daniel J. Altobello, Bruce R. Berkowitz, Jeffrey P. Citrin, Talton R.
Embry, William A. Scully and Steven S. Snider, known to me to be persons whose
names were subscribed to the within instrument and acknowledged that they
executed the same for the purposes and the capacities therein set forth.

IN WITNESS WHEREOF, I have hereunto set my hand and official seal at New York,
New York this 10th day of April, 2001.



/s/ David S. Klafter
-----------------------------------------------------
NOTARY PUBLIC


First Union 3-01 Exh (3)(a)             33