Unassociated Document


    
      

      

    

    Exhibit
      10.43
 

    


     

    AMERICAN
      REAL ESTATE PARTNERS, L.P.

     

    AMERICAN
      REAL ESTATE FINANCE CORP.

     

    AND

     

    AMERICAN
      REAL ESTATE HOLDINGS LIMITED PARTNERSHIP, AS GUARANTOR

     

    VARIABLE
      RATE SENIOR CONVERTIBLE NOTES DUE 2013

     

    


    INDENTURE

     

    Dated
      as
      of April 5, 2007

     

    


    


     

    


    WILMINGTON
      TRUST COMPANY

     

    Trustee

     

     

     

     

     

     

    
      
        
        

      

      
        
        

        
        

        
          

          

        

      

      
        
        

      

    

     

    CROSS-REFERENCE
      TABLE*

     

    
      	
              Trust
                Indenture

              Act
                Section

            	
              Indenture
                Section

            
	
              310(a)(1)

            	
              7.10

            
	
              (a)(2)

            	
              7.10

            
	
              (a)(3)

            	
              N.A.

            
	
              (a)(4)

            	
              N.A.

            
	
              (a)(5)

            	
              7.10

            
	
              (b)

            	
              7.10

            
	
              (c)

            	
              N.A.

            
	
              311(a)

            	
              7.11

            
	
              (b)

            	
              7.11

            
	
              (c)

            	
              N.A.

            
	
              312(a)

            	
              2.05

            
	
              (b)

            	
              16.03

            
	
              (c)

            	
              16.03

            
	
              313(a)

            	
              7.06

            
	
              (b)(2)

            	
              7.06;
                7.07

            
	
              (c)

            	
              7.06;
                12.02

            
	
              (d)

            	
              7.06

            
	
              314(a)

            	
              4.03;16.02;
                16.05

            
	
              (c)(1)

            	
              16.04

            
	
              (c)(2)

            	
              16.04

            
	
              (c)(3)

            	
              N.A.

            
	
              (e)

            	
              16.05

            
	
              (f)

            	
              N.A.

            
	
              315(a)

            	
              7.01

            
	
              (b)

            	
              7.05;
                16.02

            
	
              (c)

            	
              7.01

            
	
              (d)

            	
              7.01

            
	
              (e)

            	
              6.11

            
	
              316(a)
                (last sentence)

            	
              2.09

            
	
              (a)(1)(A)

            	
              6.05

            
	
              (a)(1)(B)

            	
              6.04

            
	
              (a)(2)

            	
              N.A.

            
	
              (b)

            	
              6.07

            
	
              (c)

            	
              2.12

            
	
              317(a)(1) 

            	
              6.08

            
	
              (a)(2)

            	
              6.09

            
	
              (b)

            	
              2.04

            
	
              318(a)

            	
              12.01

            
	
              (b)

            	
              N.A.

            
	
              (c)

            	
              16.01

            


    

    


    N.A.
      means not applicable.

    *
      This
      Cross Reference Table is not part of the Indenture.

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    TABLE
      OF
      CONTENTS

     

    Page

     

    
      
        	
                ARTICLE
                  1

              	 
	
                DEFINITIONS
                  AND INCORPORATION

              	 
	
                BY
                  REFERENCE

              	 
	
                Section
                  1.01

              	
                Definitions.

              	
                1

              
	
                Section
                  1.02

              	
                Other
                  Definitions.

              	
                14

              
	
                Section
                  1.03

              	
                Rules
                  of Construction.

              	
                15

              
	
                ARTICLE
                  2

              	 
	
                THE
                  NOTES

              	 
	
                Section
                  2.01

              	
                Form
                  and Dating.

              	
                16

              
	
                Section
                  2.02

              	
                Execution
                  and Authentication.

              	
                17

              
	
                Section
                  2.03

              	
                Registrar
                  and Paying Agent.

              	
                18

              
	
                Section
                  2.04

              	
                Paying
                  Agent to Hold Money in Trust.

              	
                18

              
	
                Section
                  2.05

              	
                Holder
                  Lists.

              	
                18

              
	
                Section
                  2.06

              	
                Transfer
                  and Exchange.

              	
                18

              
	
                Section
                  2.07

              	
                Replacement
                  Notes.

              	
                29

              
	
                Section
                  2.08

              	
                Outstanding
                  Notes.

              	
                29

              
	
                Section
                  2.09

              	
                Treasury
                  Notes.

              	
                30

              
	
                Section
                  2.10

              	
                Temporary
                  Notes.

              	
                30

              
	
                Section
                  2.11

              	
                Cancellation.

              	
                30

              
	
                Section
                  2.12

              	
                Defaulted
                  Interest.

              	
                31

              
	
                Section
                  2.13

              	
                CUSIP
                  Numbers.

              	
                31

              
	
                ARTICLE
                  3

              	 
	
                INTEREST

              	 
	
                Section
                  3.01

              	
                Interest
                  Rate.

              	
                31

              
	
                ARTICLE
                  4

              	 
	
                COVENANTS

              	 
	
                Section
                  4.01

              	
                Payment
                  of Notes.

              	
                32

              
	
                Section
                  4.02

              	
                Maintenance
                  of Office or Agency.

              	
                32

              
	
                Section
                  4.03

              	
                Reports.

              	
                33

              
	
                Section
                  4.04

              	
                Compliance
                  Certificate.

              	
                34

              
	
                Section
                  4.05

              	
                Taxes.

              	
                34

              
	
                Section
                  4.06

              	
                Stay,
                  Extension and Usury Laws.

              	
                35

              
	
                Section
                  4.07

              	
                Dividends
                  Paid on Depositary Units.

              	
                35

              
	
                Section
                  4.08

              	
                Transactions
                  with Affiliates.

              	
                35

              
	
                Section
                  4.09

              	
                Corporate
                  Existence.

              	
                37

              
	
                Section
                  4.10

              	
                Compliance
                  with Law

              	
                37

              
	
                Section
                  4.11

              	
                No
                  Investment Company

              	
                37

              
	
                ARTICLE
                  5

              	 
	
                SUCCESSORS

              	 
	
                Section
                  5.01

              	
                Merger,
                  Consolidation, or Sale of Assets.

              	
                37

              
	
                Section
                  5.02

              	
                Relief
                  from Obligation.

              	
                40

              


      

       

      
        
          
          

        

        
          -i-

          
            

          

        

        
          
          

        

      

       

      
        	
                ARTICLE
                  6

              	 
	
                DEFAULTS
                  AND REMEDIES

              	 
	
                Section
                  6.01

              	
                Events
                  of Default.

              	
                40

              
	
                Section
                  6.02

              	
                Acceleration.

              	
                42

              
	
                Section
                  6.03

              	
                Other
                  Remedies.

              	
                43

              
	
                Section
                  6.04

              	
                Waiver
                  of Past Defaults.

              	
                43

              
	
                Section
                  6.05

              	
                Control
                  by Majority.

              	
                43

              
	
                Section
                  6.06

              	
                Limitation
                  on Suits.

              	
                44

              
	
                Section
                  6.07

              	
                Rights
                  of Holders of Notes to Receive Payment.

              	
                44

              
	
                Section
                  6.08

              	
                Collection
                  Suit by Trustee.

              	
                44

              
	
                Section
                  6.09

              	
                Trustee
                  May File Proofs of Claim.

              	
                44

              
	
                Section
                  6.10

              	
                Priorities.

              	
                45

              
	
                Section
                  6.11

              	
                Undertaking
                  for Costs.

              	
                45

              
	
                ARTICLE
                  7

              	 
	
                TRUSTEE

              	 
	
                Section
                  7.01

              	
                Duties
                  of Trustee.

              	
                46

              
	
                Section
                  7.02

              	
                Rights
                  of Trustee.

              	
                47

              
	
                Section
                  7.03

              	
                Individual
                  Rights of Trustee.

              	
                48

              
	
                Section
                  7.04

              	
                Trustee’s
                  Disclaimer.

              	
                48

              
	
                Section
                  7.05

              	
                Notice
                  of Defaults.

              	
                48

              
	
                Section
                  7.06

              	
                Reports
                  by Trustee to Holders of the Notes.

              	
                48

              
	
                Section
                  7.07

              	
                Compensation
                  and Indemnity.

              	
                49

              
	
                Section
                  7.08

              	
                Replacement
                  of Trustee.

              	
                49

              
	
                Section
                  7.09

              	
                Successor
                  Trustee by Merger, etc.

              	
                50

              
	
                Section
                  7.10

              	
                Eligibility;
                  Disqualification.

              	
                50

              
	
                Section
                  7.11

              	
                Preferential
                  Collection of Claims Against Company.

              	
                51

              
	
                ARTICLE
                  8

              	 
	
                COVENANT
                  DEFEASANCE

              	 
	
                Section
                  8.01

              	
                Company
                  May Effect Covenant Defeasance.

              	
                51

              
	
                Section
                  8.02

              	
                Legal
                  Defeasance and Discharge.

              	
                51

              
	
                Section
                  8.03

              	
                Covenant
                  Defeasance.

              	
                51

              
	
                Section
                  8.04

              	
                Conditions
                  to Covenant Defeasance.

              	
                51

              
	
                Section
                  8.05

              	
                Deposited
                  Money and Government Securities to be Held in Trust; Other Miscellaneous
                  Provisions.

              	
                52

              
	
                Section
                  8.06

              	
                Repayment
                  to Company.

              	
                53

              
	
                Section
                  8.07

              	
                Reinstatement.

              	
                53

              
	
                ARTICLE
                  9

              	 
	
                AMENDMENT,
                  SUPPLEMENT AND WAIVER

              	 
	
                Section
                  9.01

              	
                Without
                  Consent of Holders of Notes.

              	
                54

              
	
                Section
                  9.02

              	
                With
                  Consent of Holders of Notes.

              	
                55

              
	
                Section
                  9.03

              	
                Revocation
                  and Effect of Consents.

              	
                56

              
	
                Section
                  9.04

              	
                Notation
                  on or Exchange of Notes.

              	
                56

              
	
                Section
                  9.05

              	
                Trustee
                  to Sign Amendments, etc.

              	
                57

              
	
                Section
                  9.06

              	
                Amendments,
                  Modifications, Revisions or Supplements to Senior Notes

              	
                57

              


      

       

      
        
          
          

        

        
          -ii-

          
            

          

        

        
          
          

        

      

       

      
        	
                 

              	 	 
	
                ARTICLE
                  10

              	 
	
                NOTE
                  GUARANTEES

              	 
	
                Section
                  10.01.

              	
                Guarantee.

              	
                58

              
	
                Section
                  10.02.

              	
                Limitation
                  on Guarantor Liability.

              	
                59

              
	
                Section
                  10.03.

              	
                Execution
                  and Delivery of Note Guarantee.

              	
                59

              
	
                Section
                  10.04.

              	
                Guarantors
                  May Consolidate, etc., on Certain Terms.

              	
                59

              
	
                Section
                  10.05.

              	
                Releases.

              	
                60

              
	
                ARTICLE
                  11

              	 
	
                SATISFACTION
                  AND DISCHARGE

              	 
	
                Section
                  11.01

              	
                Satisfaction
                  and Discharge.

              	
                61

              
	
                Section
                  11.02

              	
                Application
                  of Trust Money.

              	
                62

              
	
                ARTICLE
                  12

              	 
	
                CONVERSION

              	 
	
                Section
                  12.01

              	
                Conversion
                  Privilege.

              	
                62

              
	
                Section
                  12.02

              	
                Conversion
                  Procedure.

              	
                63

              
	
                Section
                  12.03

              	
                Company’s
                  Right to Require Conversion; Notices to Trustee.

              	
                63

              
	
                Section
                  12.04

              	
                Selection
                  of Notes to be Converted

              	
                65

              
	
                Section
                  12.05

              	
                Delivery
                  by Holders of Notes Subject to Forced Conversion

              	
                65

              
	
                Section
                  12.06

              	
                Deposit
                  of Interest and Additional Interest.

              	
                66

              
	
                Section
                  12.07

              	
                Delivery
                  of Depositary Units.

              	
                66

              
	
                Section
                  12.08

              	
                No
                  Fractional Units.

              	
                66

              
	
                Section
                  12.09

              	
                Taxes
                  on Conversion.

              	
                66

              
	
                Section
                  12.10

              	
                Company
                  to Provide Depositary Units.

              	
                67

              
	
                Section
                  12.11

              	
                Adjustment
                  of Conversion Price.

              	
                67

              
	
                Section
                  12.12

              	
                No
                  Adjustment.

              	
                71

              
	
                Section
                  12.13

              	
                Notice
                  of Conversion Price Adjustment

              	
                71

              
	
                Section
                  12.14

              	
                Notice
                  of Certain Transactions

              	
                72

              
	
                Section
                  12.15

              	
                Effect
                  of Reclassification, Consolidation, Merger or Sale on Conversion
                  Privilege.

              	
                72

              
	
                Section
                  12.16

              	
                Trustee’s
                  Disclaimer.

              	
                73

              
	
                Section
                  12.17

              	
                Company
                  Determination Final.

              	
                74

              
	
                ARTICLE
                  13

              	 
	
                REPURCHASE
                  UPON A FUNDAMENTAL CHANGE

              	 
	
                Section
                  13.01

              	
                Repurchase
                  of Notes at Option of the Holder Upon Fundamental Change.

              	
                74

              
	
                Section
                  13.02

              	
                Effect
                  of Fundamental Change Repurchase Notice

              	
                76

              
	
                Section
                  13.03

              	
                Notes
                  Repurchased in Whole or in Part.

              	
                77

              
	
                Section
                  13.04

              	
                Deposit
                  of Fundamental Change Repurchase Price.

              	
                77

              
	
                Section
                  13.05

              	
                Repayment
                  to the Company.

              	
                77

              
	
                ARTICLE
                  14

              	 
	
                REPURCHASE
                  REQUIRED BY GAMING AUTHORITIES

              	 
	
                Section
                  14.01

              	
                Redemption
                  Pursuant to Gaming Laws

              	
                78

              
	
                Section
                  14.02

              	
                Notices
                  to Trustee

              	
                79

              
	
                Section
                  14.03

              	
                Notice
                  of Redemption

              	
                79

              
	
                Section
                  14.04

              	
                Effect
                  of Notice of Redemption

              	
                80

              
	
                Section
                  14.05

              	
                Deposit
                  of Redemption Price

              	
                80

              
	
                Section
                  14.06

              	
                Global
                  Note Redeemed in Part

              	
                80

              


      

       

      
        
          
          

        

        
          -iii-

          
            

          

        

        
          
          

        

      

       

      
        	
                ARTICLE
                  15

              	 
	
                MAKE-WHOLE
                  PREMIUM

              	 
	
                Section
                  15.01

              	
                Make-Whole
                  Premium

              	
                80

              
	
                Section
                  15.02

              	
                Adjustment
                  to the Make-Whole Premium

              	
                83

              
	
                Section
                  15.03

              	
                Trustee’s
                  Disclaimer

              	
                84

              
	
                ARTICLE
                  16

              	 
	
                MISCELLANEOUS

              	 
	
                Section
                  16.01

              	
                Trust
                  Indenture Act Controls

              	
                84

              
	
                Section
                  16.02

              	
                Notices.

              	
                84

              
	
                Section
                  16.03

              	
                Communication
                  by Holders of Notes with Other Holders of Notes.

              	
                85

              
	
                Section
                  16.04

              	
                Certificate
                  and Opinion as to Conditions Precedent.

              	
                85

              
	
                Section
                  16.05

              	
                Statements
                  Required in Certificate or Opinion.

              	
                86

              
	
                Section
                  16.06

              	
                Rules
                  by Trustee and Agents.

              	
                86

              
	
                Section
                  16.07

              	
                No
                  Personal Liability of Directors, Officers, Employees and
                  Stockholders.

              	
                86

              
	
                Section
                  16.08

              	
                Governing
                  Law.

              	
                86

              
	
                Section
                  16.09

              	
                No
                  Adverse Interpretation of Other Agreements.

              	
                87

              
	
                Section
                  16.10

              	
                Successors.

              	
                87

              
	
                Section
                  16.11

              	
                Severability.

              	
                87

              
	
                Section
                  16.12

              	
                Counterpart
                  Originals.

              	
                87

              
	
                Section
                  16.13

              	
                Table
                  of Contents, Headings, etc.

              	
                87

              
	
                Section
                  16.14

              	
                Clarity.

              	
                87

              
	 	 	 
	
                EXHIBITS

                 

              	 
	
                Exhibit
                  A1

              	
                FORM
                  OF NOTE

              	 
	
                Exhibit
                  A2

              	
                FORM
                  OF REGULATION S TEMPORARY GLOBAL NOTE

              	 
	
                Exhibit
                  B

              	
                FORM
                  OF CERTIFICATE OF TRANSFER

              	 
	
                Exhibit
                  C

              	
                FORM
                  OF CERTIFICATE OF EXCHANGE

              	 
	
                Exhibit
                  D

              	
                FORM
                  OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED
                  INVESTOR

              	 
	
                Exhibit
                  E

              	
                FORM
                  OF NOTATION OF GUARANTEE

              	 
	
                Exhibit
                  F

              	
                FORM
                  OF NOTICE OF CONVERSION

              	 
	
                Exhibit
                  G

              	
                FORM
                  OF FUNDAMENTAL CHANGE REPURCHASE NOTICE

              	 


      

    

     

    
      
        
        

      

      
        -iv-

        
          

        

      

      
        
        

      

    

     

    INDENTURE
      dated as of April 5, 2007 among American Real Estate Partners, L.P., a Delaware
      limited partnership, as issuer (“AREP”),
      American Real Estate Finance Corp., a Delaware corporation, as co-issuer
      (“AREP
      Finance”,
      and
      together with AREP, the “Company”),
      American Real Estate Holdings Limited Partnership, as Guarantor, and Wilmington
      Trust Company, as trustee.

     

    WHEREAS,
      the Company has duly authorized the creation of an issue of its Variable Rate
      Senior Convertible Notes Due 2013 (each a “Note”
and
      collectively, the “Notes”)
      of
      substantially the tenor and amount hereinafter set forth, and to provide
      therefor the Company has duly authorized the execution and delivery of this
      Indenture; and

     

    WHEREAS,
      all things necessary to make the Notes, when executed by the Company and
      authenticated and delivered hereunder and duly issued by the Company, the valid
      and legally binding obligations of the Company, and to make this Indenture
      a
      valid and legally binding agreement of the Company, in accordance with the
      terms
      of the Notes and the Indenture, have been done. Further, all things necessary
      to
      duly authorize the issuance of the Depositary Units of the Company initially
      issuable upon the conversion of the Notes, and to duly reserve for issuance
      the
      number of Depositary Units initially issuable upon such conversion, have been
      done.

     

    NOW,
      THEREFORE,
      the
      Company, the Guarantor and the Trustee agree as follows for the benefit of
      each
      other and for the equal and ratable benefit of the Holders (as defined below)
      of
      the Notes:

     

    ARTICLE
      1

    DEFINITIONS
      AND INCORPORATION

    BY
      REFERENCE

     

    Section
      1.01 Definitions.

     

    “144A
      Global Note”
      means a
      Global Note substantially in the form of Exhibit A1 hereto bearing the Global
      Note Legend and the Private Placement Legend and deposited with or on behalf
      of,
      and registered in the name of, the Depositary or its nominee that will be issued
      in a denomination equal to the outstanding principal amount of the Notes sold
      in
      reliance on Rule 144A.

     

    “2004
      Indenture”
means
      the Indenture dated as of May 12, 2004 between the Company, AREH, as guarantor,
      and Wilmington Trust Company, as Trustee, as amended from time to time, under
      which the 8 1/8% Senior Notes are issued and outstanding.

     

    “2005
      Indenture”
      means
      the Indenture dated as of February 7, 2005 between the Company, AREH, as
      guarantor, and Wilmington Trust Company, as Trustee, as amended from time to
      time, under which the 7 1/8% Senior Notes are issued and
      outstanding.

     

    “7
      1/8% Senior Notes”
      means
      the Company’s 7 1/8% Senior Notes due 2013 as amended from time to time issued
      pursuant to the 2005 Indenture.

     

    “8
      1/8% Senior Notes”
      means
      the Company’s 8 1/8% Senior Notes due 2012 as amended from time to time issued
      pursuant to the 2004 Indenture.

     

    “Additional
      Interest”
      means
      all Additional Interest, as defined in and, then owing pursuant to the
      Registration Rights Agreement.

     

    “Additional
      Notes”
      means
      additional Notes (other than the Initial Notes) issued under this Indenture
      in
      accordance with Sections 2.02 and 4.09 hereof, as part of the same series as
      the
      Initial Notes. 

     


    
      
        
        

      

      
        -
          1 -

        
          

        

      

      
        
        

      

    


    “Affiliate”
      of any
      specified Person means any other Person directly or indirectly controlling
      or
      controlled by or under direct or indirect common control with such specified
      Person. For purposes of this definition, “control,” as used with respect to any
      Person, means the possession, directly or indirectly, of the power to direct
      or
      cause the direction of the management or policies of such Person, whether
      through the ownership of voting securities, by agreement or otherwise; provided
      that beneficial ownership of 10% or more of the Voting Stock of a Person will
      be
      deemed to be control. For purposes of this definition, the terms “controlling,
“controlled by” and “under common control with” have correlative
      meanings.

     

    “Agent”
      means
      any Registrar, co-registrar, Paying Agent, additional paying agent or Conversion
      Agent.

     

    “API”
means
      American Property Investors, Inc., the general partner of AREP as of the date
      of
      this Indenture (and not any of its subsidiaries).

     

    “Applicable
      Procedures”
      means,
      with respect to any transfer or exchange of or for beneficial interests in
      any
      Global Note, the rules and procedures of the Depositary, Euroclear and
      Clearstream that apply to such transfer or exchange.

     

    “AREH”
      means
      American Real Estate Holdings Limited Partnership (and not any of its
      subsidiaries).

     

    “AREP”
      means
      American Real Estate Partners, L.P. (and not any of its
      subsidiaries).

     

    “AREP
      Finance”
      means
      American Real Estate Finance Corp.

     

    “AREP
      Partnership Agreement”
      means
      AREP’s Amended and Restated Agreement of Limited Partnership, dated May 12, 1987
      as amended February 22, 1995, August 16, 1996, May 9, 2002 and June 27,
      2005.

     

    “Bankruptcy
      Law”
      means
      Title 11, U.S. Code or any similar federal or state law for the relief of
      debtors.

     

    “Beneficial
      Owner”
      has the
      meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange
      Act, except that in calculating the beneficial ownership of any particular
      “person” (as that term is used in Section 13(d)(3) of the Exchange Act), such
“person” will be deemed to have beneficial ownership of all securities that such
“person” has the right to acquire by conversion or exercise of other securities,
      whether such right is currently exercisable or is exercisable only after the
      passage of time. The terms “Beneficially Owns” and “Beneficially Owned” have a
      corresponding meaning.

     

    “Bloomberg”
      means
      Bloomberg Financial Markets.

     

    “Board
      of Directors”
      means:

     

    (1)
       with
      respect to a corporation, the board of directors of the corporation or any
      committee thereof duly authorized to act on behalf of such board;

     

    (2)
       with
      respect to a partnership, the Board of Directors of the general partner of
      the
      partnership;

     


    
      
        
        

      

      
        -
          2 -

        
          

        

      

      
        
        

      

    


    (3)
       with
      respect to a limited liability company, the managing member or members or any
      controlling committee of managing members thereof or the Board of Directors
      of
      the managing member; and

     

    (4)
       with
      respect to any other Person, the board or committee of such Person serving
      a
      similar function.

     

    “Broker-Dealer”
      means
      any broker or dealer registered as such under the Exchange Act.

     

    “Business
      Day”
      means
      any day excluding Saturday, Sunday and any day which is a legal holiday under
      the laws of the State of New York or is a day on which banking institutions
      located in such jurisdictions are authorized or required by law or other
      governmental action to close.

     

    “Capital
      Lease Obligation”
      means,
      at the time any determination is to be made, the amount of the liability in
      respect of a capital lease that would at that time be required to be capitalized
      on a balance sheet prepared in accordance with GAAP, and the Stated Maturity
      thereof shall be the date of the last payment of rent or any other amount due
      under such lease prior to the first date upon which such lease may be prepaid
      by
      the lessee without payment of a penalty.

     

    “Capital
      Stock”
      means:

     

    (1)
       in
      the
      case of a corporation, corporate stock;

     

    (2)
       in
      the
      case of an association or business entity, any and all shares, interests,
      participations, rights or other equivalents (however designated) of corporate
      stock;

     

    (3)
       in
      the
      case of a partnership or limited liability company, partnership interests
      (whether general or limited) or membership interests; and

     

    (4)
       any
      other
      interest or participation that confers on a Person the right to receive a share
      of the profits and losses of, or distributions of assets of, the issuing Person
      but excluding from all of the foregoing any debt securities convertible into
      Capital Stock, whether or not such debt securities include any right of
      participation with Capital Stock.

     

    “Cash
      Equivalents”
      means:

     

    (1)
       United
      States dollars;

     

    (2)
       securities
      issued or directly and fully guaranteed or insured by the United States
      government or any agency or instrumentality of the United States government
      (provided that the full faith and credit of the United States is pledged in
      support of those securities) having maturities of not more than one year from
      the date of acquisition;

     

    (3)
       certificates
      of deposit and eurodollar time deposits with maturities of one year or less
      from
      the date of acquisition, bankers’ acceptances with maturities not exceeding one
      year and overnight bank deposits, in each case, with any domestic commercial
      bank having capital and surplus in excess of $500.0 million and a Thomson Bank
      Watch Rating of “B” or better;

     


    
      
        
        

      

      
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    (4)
       repurchase
      obligations with a term of not more than seven days for underlying securities
      of
      the types described in clauses (2) and (3) above entered into with any financial
      institution meeting the qualifications specified in clause (3)
      above;

     

    (5)
       commercial
      paper having one of the two highest ratings obtainable from Moody’s Investors
      Service, Inc. or Standard & Poor’s Rating Services and, in each case,
      maturing within one year after the date of acquisition; and

     

    (6)
       money
      market funds at least 95% of the assets of which constitute Cash Equivalents
      of
      the kinds described in clauses (1) through (5) of this definition.

     

    “Change
      of Control”
      means
      the occurrence of any of the following:

     

    (1)
       the
      sale,
      lease, transfer, conveyance or other disposition by AREP or any Guarantor (other
      than by way of merger or consolidation), in one or a series of related
      transactions, of all or substantially all of the properties or assets of AREP
      or
      AREH to any “person” (as that term is used in Section 13(d) of the Exchange Act)
      other than the Principal or a Related Party; provided,
      however,
      that
      (x) if AREP or AREH receives consideration in Cash Equivalents and marketable
      securities with an aggregate Fair Market Value determined at the time of the
      execution of each relevant agreement of at least $1.0 billion for such sale,
      lease, transfer, conveyance or other disposition of properties or assets, then
      such transaction shall not be deemed a Change of Control and (y) any sale,
      assignment, transfer or other disposition of Cash Equivalents, including,
      without limitation, any investment or capital contribution of Cash Equivalents
      or purchase of property, assets or Capital Stock with Cash Equivalents, will
      not
      constitute a sale, assignment, transfer, conveyance or other disposition of
      all
      or substantially all of the properties or assets for purposes of this clause
      (1);

     

    (2)
       the
      adoption of a plan relating to the liquidation or dissolution of
      AREP;

     

    (3)
       the
      consummation of any transaction (including, without limitation, any merger
      or
      consolidation), the result of which is that any “person” (as defined above),
      other than the Principal or the Related Parties, becomes the Beneficial Owner,
      directly or indirectly, of more than 50% of the Voting Stock of a Controlling
      Entity of AREP, measured by voting power rather than number of
      shares;

     

    (4)
       the
      first
      day on which a majority of the members of the Board of Directors of the
      Controlling Entity are not Continuing Directors; or

     

    (5)
       for
      so
      long as the Company is a partnership, upon any general partner of AREP ceasing
      to be an Affiliate of the Principal or a Related Party.

     

    “Clearstream”
      means
      Clearstream Banking, S.A.

     

    “Company”
      means,
      collectively AREP and AREP Finance, and any and all successors
      thereto.

     

    “Continuing
      Directors”
      means,
      as of any date of determination, any member of the Board of Directors of the
      Controlling Entity who:

     

    (1)
       was
      a
      member of such Board of Directors on the date of this Indenture; or

     


    
      
        
        

      

      
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    (2)
       was
      nominated for election or elected to such Board of Directors with the approval
      of the Principal or any of the Related Parties or with the approval of a
      majority of the Continuing Directors who were members of such Board of Directors
      at the time of such nomination or election.

     

    “Control”
means
      the possession, directly or indirectly, of the power to direct or cause the
      direction of management and policies of a Person, whether through the ownership
      of Voting Stock, by agreement or otherwise.

     

    “Controlling
      Entity”
means
      (1) for so long as AREP is a partnership, any general partner of AREP, (2)
      if
      AREP is a limited liability company, any managing member of AREP or (3) if
      AREP
      is a corporation, AREP.

     

    “Conversion
      Agent”
means
      the Trustee or such other office or agency designated by the Company with notice
      provided to the Holders where Notes may be presented for conversion.


     

    “Conversion
      Price”
means,
      as of any Conversion Date or other date of determination, $132.595 subject
      to
      adjustment as provided herein.

     

    “Conversion
      Rate”
means,
      as of any Conversion Date or other date of determination, for each $1,000
      principal amount of Notes, the quotient of $1,000 divided by the Conversion
      Price in effect as of such date.

     

    “Corporate
      Trust Office of the Trustee”
      will be
      at the address of the Trustee specified in Section 16.02 hereof or such other
      address as to which the Trustee may give notice to the Company. 

     

    “Custodian”
      means
      the Trustee, as custodian with respect to the Notes in global form, or any
      successor entity thereto.

     

    “Default”
      means
      any event that is, or with the passage of time or the giving of notice or both
      would be, an Event of Default.

     

    “Definitive
      Note”
      means a
      certificated Note registered in the name of the Holder thereof and issued in
      accordance with Section 2.06 hereof, substantially in the form of Exhibit A1
      hereto except that such Note shall not bear the Global Note Legend and shall
      not
      have the “Schedule of Exchanges of Interests in the Global Note” attached
      thereto.

     

    “Depositary”
      means,
      with respect to the Notes issuable or issued in whole or in part in global
      form,
      the Person specified in Section 2.03 hereof as the Depositary with respect
      to
      the Notes, and any and all successors thereto appointed as depositary hereunder
      and having become such pursuant to the applicable provision of this
      Indenture.

     

    “Depositary
      Unit Price”
means
      the price paid per Depositary Unit in the transaction constituting the
      Fundamental Change, determined as follows: (i) if holders of Depositary Units
      receive only cash in the transaction constituting the Fundamental Change, the
      Depositary Unit Price shall equal the cash amount paid per Depositary Unit;
      and
      (ii) in all other cases, the Depositary Unit Price shall equal the arithmetic
      average of the VWAP of a Depositary Unit on each of the five (5) Trading Day
      period ending on the Trading Day immediately preceding the Effective
      Date.

     

    “Depositary
      Units”
means
      Depositary Units representing limited partnership interests of the Company
      listed for trading on the NYSE as they exist on the date of this Indenture
      or
      any other units of

     


    
      
        
        

      

      
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    Capital
      Stock of the Company into which the Depositary Units shall be reclassified
      or
      changed or, in the event of a merger, consolidation or other similar transaction
      involving the Company that is otherwise permitted hereunder in which the Company
      is not the surviving entity, the Equity Interests of such surviving entity
      or
      its direct or indirect parent entity into which the Notes would become
      convertible pursuant to the applicable supplemental indenture.

     

    “Disqualified
      Stock”
      means
      any Capital Stock that, by its terms (or by the terms of any security into
      which
      it is convertible, or for which it is exchangeable, in each case, at the option
      of the holder of the Capital Stock), or upon the happening of any event, matures
      or is mandatorily redeemable, pursuant to a sinking fund obligation or
      otherwise, or redeemable at the option of the holder of the Capital Stock,
      in
      whole or in part, on or prior to the date that is 91 days after the date on
      which the Notes mature. Notwithstanding the preceding sentence, any Capital
      Stock that would constitute Disqualified Stock solely because the holders of
      the
      Capital Stock have the right to require AREP or any Guarantor to repurchase
      such
      Capital Stock upon the occurrence of a change of control, event of loss, an
      asset sale or other special redemption event will not constitute Disqualified
      Stock if the terms of such Capital Stock provide that AREP or any Guarantor
      may
      not repurchase or redeem any such Capital Stock pursuant to such provisions
      unless such repurchase or redemption complies with Section 4.07 of the 2005
      Indenture or where the funds to pay for such repurchase was from the net cash
      proceeds of such Capital Stock and such net cash proceeds was set aside in
      a
      separate account to fund such repurchase. Furthermore, any Capital Stock that
      would constitute Disqualified Stock solely because the holders of the Capital
      Stock have the right to require AREP or any Guarantor to redeem such Capital
      Stock, including, without limitation, upon maturity will not constitute
      Disqualified Stock if the terms of such Capital Stock provide that AREP or
      any
      Guarantor may redeem such Capital Stock for other Capital Stock that is not
      Disqualified Stock. The amount of Disqualified Stock deemed to be outstanding
      at
      any time for purposes of this Indenture will be the maximum amount that AREP
      and
      its Subsidiaries (including any Guarantor) may become obligated to pay upon
      the
      maturity of, or pursuant to any mandatory redemption provisions of, such
      Disqualified Stock, exclusive of accrued dividends. For the avoidance of doubt,
      and by way of example, the Preferred Units, as in effect on the date of this
      Indenture, do not constitute Disqualified Stock.

     

    “Eligible
      Market”
means
      the NYSE, The NASDAQ Global Select Market or The NASDAQ Global
      Market.

     

    “Equity
      Conditions”
means
      that each of the following conditions is satisfied: (i) the Depositary Units
      are
      designated for quotation on an Eligible Market, no suspension from trading
      of
      the Depositary Units on such exchange or market shall exist and be continuing,
      and neither delisting nor suspension of the Depositary Units by such exchange
      or
      market shall be threatened or pending, in either case (A) in writing by such
      exchange or market or (B) by falling below the minimum listing maintenance
      requirements of such exchange or market; and (ii) as it relates to Article
      12
      and the delivery of a Forced Conversion Notice, either (A) the Registration
      Statement filed pursuant to the Registration Rights Agreement shall be effective
      and available for the resale of all remaining Registrable Securities (each
      as
      defined in the Registration Rights Agreement) in accordance with the terms
      of
      the Registration Rights Agreement or (B) all Depositary Units issuable upon
      conversion of the Notes shall be eligible for resale by the holders without
      restriction and without the need for registration under any applicable federal
      or state securities laws, including, without limitation, pursuant to Rule 144(k)
      under the 1933 Act.

     

    “Equity
      Interests”
      means
      Capital Stock and all warrants, options or other rights to acquire Capital
      Stock
      (but excluding any debt security that is convertible into, or exchangeable
      for,
      Capital Stock).

     

    “Euroclear”
      means
      Euroclear Bank, S.A./N.V., as operator of the Euroclear system.

     


    
      
        
        

      

      
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    “Exchange
      Act”
      means
      the Securities Exchange Act of 1934, as amended.

     

    “Excluded
      Securities”
means
      issuances of (a) any Notes or (b) any Depositary Units (i) pursuant to any
      present or future plan providing for the reinvestment of dividends or interest
      payable on securities of the Company and the investment of additional optional
      amounts in Depositary Units under any plan; (ii) pursuant to any present or
      future employee, director or consultant benefit plan or program or employee
      equity purchase plan of the Company or any of its Subsidiaries, (iii) pursuant
      to any option, warrant, right or exercisable, exchangeable or convertible
      security (including, without limitation, the Preferred Units) not described
      in
      clause (ii) above and outstanding as of the Issuance Date (provided that the
      terms of such option, warrant, right or security are not amended or modified
      in
      any manner after the Issuance Date); (iv) for any Make-Whole Premium described
      in Article 14; and (v) upon conversion of any Notes.

     

    “Fair
      Market Value” means
      the
      value that would be paid by a willing buyer to an unaffiliated willing seller
      in
      a transaction not involving distress or necessity of either party, determined
      in
      good faith by the Board of Directors of the Controlling Entity (unless otherwise
      provided in this Indenture).

     

    “Forced
      Conversion Period”
means
      the period beginning on the Forced Conversion Notice Date and ending on the
      Forced Conversion Date.

     

    “Fundamental
      Change”
means
      the occurrence of a Change in Control or a Termination of Trading.

     

    “Fundamental
      Change Settlement Date”
means
      the Effective Date for a Fundamental Change. In respect of any Fundamental
      Change Conversion or Fundamental Change Repurchase for which a Notice of
      Conversion or Fundamental Change Repurchase Notice, as applicable, has been
      delivered after the Effective Date (and during the Fundamental Change
      Conversion/Repurchase Period), the Fundamental Change Settlement Date shall
      mean
      the date that is two Business Days following the end of the Fundamental Change
      Conversion/Repurchase Period.

     

    “GAAP”
      means
      generally accepted accounting principles in the United States set forth in
      the
      statements and pronouncements of the Financial Accounting Standards Board or
      in
      such other statements by such other entity as have been approved by a
      significant segment of the accounting profession, which are in effect on the
      Issuance Date. For the purposes of this Indenture, the term “consolidated” with
      respect to any Person shall mean such Person consolidated with its
      Subsidiaries.

     

    “Gaming
      Authority”
      means
      any agency, authority, board, bureau, commission, department, office or
      instrumentality of any nature whatsoever of the United States or other national
      government, any state, province or any city or other political subdivision,
      including, without limitation, the State of Nevada, whether now or hereafter
      existing, or any officer or official thereof and any other agency with authority
      thereof to regulate any gaming operation (or proposed gaming operation) owned,
      managed or operated by the Principal, its Related Parties, the Company or any
      of
      their respective Subsidiaries or Affiliates.

     

    “Gaming
      Law”
      means
      any gaming law or regulation of any jurisdiction or jurisdictions to which
      the
      Company or any of its Subsidiaries (including AREH) is, or may at any time
      after
      the issue date be, subject.

     

    “Global
      Note Legend”
      means
      the legend set forth in Section 2.06(f)(2) hereof, which is required to be
      placed on all Global Notes issued under this Indenture.

     


    
      
        
        

      

      
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    “Global
      Notes”
      means,
      individually and collectively, each of the Restricted Global Notes and the
      Unrestricted Global Notes deposited with or on behalf of and registered in
      the
      name of the Depository or its nominee, substantially in the form of Exhibit
      A1
      hereto and that bears the Global Note Legend and that has the “Schedule of
      Exchanges of Interests in the Global Note” attached thereto, issued in
      accordance with Section 2.01, 2.06(b)(3), 2.06(b)(4) or 2.06(d)(2).

     

    “Government
      Securities”
      means
      securities that are (1) direct obligations of the United States of America
      for
      the timely payment of which its full faith and credit is pledged or (2)
      obligations of a Person controlled or supervised by and acting as an agency
      or
      instrumentality of the United States of America the timely payment of which
      is
      unconditionally guaranteed as a full faith and credit obligation by the United
      States of America, which, in either case, are not callable or redeemable at
      the
      option of the issuer thereof, and shall also include a depository receipt issued
      by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian
      with respect to any such Government Security or a specific payment of principal
      of or interest on any such Government Security held by such custodian for the
      account of the holder of such depository receipt; provided
      that
      (except as required by law) such custodian is not authorized to make any
      deduction from the amount payable to the holder of such depository receipt
      from
      any amount received by the custodian in respect of the Government Security
      or
      the specific payment of principal of or interest on the Government Security
      evidenced by such depository receipt.

     

    “Guarantee”
      means a
      guarantee (other than by endorsement of negotiable instruments for collection
      in
      the ordinary course of business), direct or indirect, in any manner (including,
      without limitation, by way of a pledge of assets or through letters of credit
      or
      reimbursement agreements in respect thereof), of all or any part of any
      Indebtedness (whether arising by virtue of partnership arrangements, or by
      agreements to keep-well, to purchase assets, goods, securities or services,
      to
      take or pay or to maintain financial statement conditions or
      otherwise).

     

    “Guarantor”
      means
      any Subsidiary of AREP (initially only AREH) that executes a Note Guarantee
      in
      accordance with the provisions of this Indenture, and their respective
      successors and assigns, in each case, until the Note Guarantee of such Person
      has been released in accordance with the provisions of this
      Indenture.

     

    “Hedging
      Obligations”
      means,
      with respect to any specified Person, the obligations of such Person
      under:

     

    (1)
       interest
      rate swap agreements (whether from fixed to floating or from floating to fixed),
      interest rate cap agreements and interest rate collar agreements;

     

    (2)
       other
      agreements or arrangements designed to manage interest rates or interest rate
      risk; and

     

    (3)
       other
      agreements or arrangements designed to protect such Person against fluctuations
      in currency exchange rates or commodity prices.

     

    “Holder”
      means a
      Person in whose name a Note is registered.

     

    “IAI
      Global Note”
      means a
      Global Note substantially in the form of Exhibit A1 hereto bearing the Global
      Note Legend and the Private Placement Legend and deposited with or on behalf
      of
      and registered in the name of the Depositary or its nominee that will be issued
      in a denomination equal to the outstanding principal amount of the Notes sold
      to
      Institutional Accredited Investors.

     


    
      
        
        

      

      
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    “Indebtedness”
      means,
      with respect to any specified Person, any indebtedness of such Person (excluding
      accrued expenses and trade payables), whether or not contingent:

     

    (1)
       in
      respect of borrowed money;

     

    (2)
       evidenced
      by bonds, notes, debentures or similar instruments or letters of credit (or
      reimbursement agreements in respect thereof);

     

    (3)
       in
      respect of banker’s acceptances;

     

    (4)
       representing
      Capital Lease Obligations;

     

    (5)
       representing
      the balance deferred and unpaid of the purchase price of any property or
      services due more than six months after such property is acquired or such
      services are completed; or

     

    (6)
       representing
      any Hedging Obligations,

     

    if
      and to
      the extent any of the preceding items (other than letters of credit and Hedging
      Obligations) would appear as a liability upon a balance sheet of the specified
      Person prepared in accordance with GAAP. In addition, the term “Indebtedness”
includes all Indebtedness of others secured by a Lien on any asset of the
      specified Person (whether or not such Indebtedness is assumed by the specified
      Person) and, to the extent not otherwise included, the Guarantee by the
      specified Person of any Indebtedness of any other Person.

     

    “Indenture”
      means
      this Indenture, as amended or supplemented from time to time.

     

    “Indirect
      Participant”
      means a
      Person who holds a beneficial interest in a Global Note through a
      Participant.

     

    “Interest
      Payment Date”
      means
      each January 15, April 15, July 15 and October 15, commencing July 15, 2007
      and
      ending with a final interest payment date on the Maturity Date. 

     

    “Initial
      Notes”
      means
      the first $200,000,000 aggregate principal amount of Notes issued under this
      Indenture on the date hereof.

     

    “Initial
      Purchasers”
      means
      Portside Growth and Opportunity Fund and Highbridge International
      LLC.

     

    “Institutional
      Accredited Investor”
      means an
      institution that is an “accredited investor” as defined in Rule 501(a)(1), (2),
      (3) or (7) under the Securities Act, who are not also QIBs.

     

    “Issuance
      Date” means
      the
      closing date for the sale and original issuance of the Notes.

     

    “Legal
      Holiday” means
      any
      day other than a Business Day. If a payment date is a Legal Holiday at a place
      of payment, payment may be made at that place on the next succeeding Business
      Day, and no interest shall accrue on such payment for the intervening
      period.

     

    “LIBOR”
      means,
      as of the applicable date, the three-month London Interbank Offered Rate for
      deposits in U.S. dollars, as shown on such date in The Wall Street Journal
      (Eastern Edition) under the caption “Money Rates - London Interbank Offered
      Rates (LIBOR)”; or (ii) if The Wall Street Journal does not publish such rate,
      the offered one-month rate for deposits in U.S. dollars which appears on
      the

     


    
      
        
        

      

      
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    Reuters
      Screen LIBO Page as of 10:00 a.m., New York time, each day, provided
      that if
      at least two rates appear on the Reuters Screen LIBO Page on any day, the
“LIBOR” for such day shall be the arithmetic mean of such rates.

     

    “Lien”
      means,
      with respect to any asset, any mortgage, lien, pledge, charge, security interest
      or encumbrance of any kind in respect of such asset, whether or not filed,
      recorded or otherwise perfected under applicable law, including any conditional
      sale or other title retention agreement, any lease in the nature thereof, any
      option or other agreement to sell or give a security interest in and any filing
      of or agreement to give any financing statement under the Uniform Commercial
      Code (or equivalent statutes) of any jurisdiction.

     

    “Maturity
      Date”
      when
      used with respect to any Note, means the date specified in such Note as the
      fixed date on which the principal amount of such Note together with accrued
      and
      unpaid interest and Additional Interest, if any, is due and
      payable.

     

    “Non-U.S.
      Person”
      means a
      Person who is not a U.S. Person.

     

    “Note
      Guarantee”
      means
      the Guarantee by any Subsidiary of AREP of the Company’s obligations under this
      Indenture and the Notes, executed pursuant to the provisions of this Indenture;
      which initially will only be by AREH.

     

    “Notes”
      has the
      meaning assigned to it in the preamble to this Indenture. The Initial Notes
      and
      the Additional Notes shall be treated as a single class for all purposes under
      this Indenture, and unless the context otherwise requires, all references to
      the
      Notes shall include the Initial Notes and any Additional Notes.

     

    “NYSE”
      means
      the
      New York Stock Exchange, Inc.

     

    “Obligations”
      means
      any principal, interest, penalties, fees, indemnifications, reimbursements,
      damages and other liabilities payable under the documentation governing any
      Indebtedness.

     

    “Offering”
      means a
bona
      fide
      underwritten public offering (other than an “at-the-market offering” as defined
      in Rule 415(a)(4) under the 1933 Act and “equity lines”) by the Company lead
      managed by any of the investment banking firms listed on Schedule A hereto
      or one of the 10 top-ranked (by dollar amount of lead managed public
      offerings of common stock in the United States for the most recently ended
      calendar year as such ranking is published in one or more nationally recognized
      league tables) investment banking firms, in any such case which
      is completed at least 30 days after the date of effectiveness of the Initial
      Shelf Registration Statement (as defined in the Registration Rights Agreement)
      and that results in aggregate gross proceeds to the Company in excess of $350
      million (excluding any portion of such offering sold to (a) officers and
      directors of the Company; (b) any Related Party or (c) any Affiliate of any
      of
      the foregoing).

     

    “Officer”
      means,
      with respect to any Person, the Chairman of the Board, the Chief Executive
      Officer, the President, the Chief Operating Officer, the Chief Financial
      Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary
      or any Vice-President of such Person.

     

    “Officers’
      Certificate”
      means a
      certificate signed on behalf of API or AREP Finance, as applicable, by two
      Officers (or if AREP is (x) a limited liability company, two Officers of the
      managing member of such limited liability company or (y) a corporation, by
      two
      Officers thereof) of API or AREP Finance, as applicable, one of whom must be
      the
      principal executive officer, the principal financial

     


    
      
        
        

      

      
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    officer,
      the treasurer or the principal accounting officer of API or AREP Finance, as
      applicable, that meets the requirements of Section 16.05 hereof.

     

    “Opinion
      of Counsel”
      means an
      opinion from legal counsel who is reasonably acceptable to the Trustee, that
      meets the requirements of Section 16.05 hereof. The counsel may be an employee
      of or counsel to the Company, any Subsidiary of the Company or any of its
      Affiliates or the Trustee.

     

    “Other
      Additional Interest”
      means
      liquidated damages or additional interest arising from a registration default
      under a registration rights agreement with respect to the registration of
      subordinated Indebtedness permitted to be incurred under this
      Indenture.

     

    “Participant”
      means,
      with respect to the Depositary, Euroclear or Clearstream, a Person who has
      an
      account with the Depositary, Euroclear or Clearstream, respectively (and, with
      respect to DTC, shall include Euroclear and Clearstream).

     

    “Partners’
      Equity”
      with
      respect to any Person means as of any date, the partners’ equity as of such date
      shown on the consolidated balance sheet of such Person and its Subsidiaries
      or
      if such Person is not a partnership, the comparable line-item on a balance
      sheet, each prepared in accordance with GAAP. 

     

    “Person”
      means
      any individual, corporation, partnership, limited liability company, joint
      venture, association, joint-stock company, trust, unincorporated organization,
      government or any agency or political subdivision thereof or any other
      entity.

     

    “Preferred
      Units”
      means
      AREP’s 5% Cumulative Pay-in-Kind Redeemable Preferred Units payable on or before
      March 31, 2010.

     

    “Preferred
      Unit Distribution”
      means
      the scheduled annual Preferred Unit distribution, payable on March 31 of each
      year in additional Preferred Units at the rate of 5% of the liquidation
      preference of $10.00 per Preferred Unit.

     

    “Principal”
      means
      Carl Icahn.

     

    “Private
      Placement Legend”
      means
      the legend set forth in Section 2.06(f)(1) hereof to be placed on all Notes
      issued under this Indenture except where otherwise permitted by the provisions
      of this Indenture.

     

    “QIB”
      means a
“qualified institutional buyer” as defined in Rule 144A.

     

    “Record
      Date”
for
      the
      interest payable on any Interest Payment Date means each January 1, April 1,
      July 1 and October 1 (whether or not a Business Day) next preceding such
      Interest Payment Date.

     

    “Registration
      Rights Agreement”
      means
      the Registration Rights Agreement, dated as of April 4, 2007, among the Company,
      AREH and the other parties named on the signature pages thereof, as such
      agreement may be amended, modified or supplemented from time to
      time.

     

    “Regulation
      S”
      means
      Regulation S promulgated under the Securities Act.

     

    “Regulation
      S Global Note”
      means a
      Regulation S Temporary Global Note or Regulation S Permanent Global Note, as
      appropriate.

     


    
      
        
        

      

      
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          11 -

        
          

        

      

      
        
        

      

    


    “Regulation
      S Permanent Global Note”
      means a
      permanent Global Note in the form of Exhibit A1 hereto bearing the Global Note
      Legend and the Private Placement Legend and deposited with or on behalf of
      and
      registered in the name of the Depositary or its nominee, issued in a
      denomination equal to the outstanding principal amount of the Regulation S
      Temporary Global Note upon expiration of the Restricted Period.

     

    “Regulation
      S Temporary Global Note”
      means a
      temporary Global Note in the form of Exhibit A2 hereto deposited with or on
      behalf of and registered in the name of the Depositary or its nominee, issued
      in
      a denomination equal to the outstanding principal amount of the Notes initially
      sold in reliance on Rule 903 of Regulation S.

     

    “Related
      Parties”
      means
      (1) Carl Icahn, any spouse and any child, stepchild, sibling or descendant
      of
      Carl Icahn, (2) any estate of Carl Icahn or any person under clause (1), (3)
      any
      person who receives a beneficial interest in any estate under clause (2) to
      the
      extent of such interest, (4) any executor, personal administrator or trustee
      who
      holds such beneficial interest in AREP for the benefit of, or as fiduciary
      for,
      any person under clauses (1), (2) or (3) to the extent of such interest and
      (5)
      any corporation, partnership, limited liability company, trust, or similar
      entity, directly or indirectly owned or Controlled by Carl Icahn or any other
      person or persons identified in clauses (1), (2) or (3).

     

    “Responsible
      Officer,”
      when
      used with respect to the Trustee, means any officer within the Corporate Trust
      Administration of the Trustee (or any successor group of the Trustee) or any
      other officer of the Trustee customarily performing functions similar to those
      performed by any of the above designated officers and also means, with respect
      to a particular corporate trust matter, any other officer to whom such matter
      is
      referred because of his knowledge of and familiarity with the particular
      subject.

     

    “Restricted
      Definitive Note”
      means a
      Definitive Note bearing the Private Placement Legend.

     

    “Restricted
      Global Note”
      means a
      Global Note bearing the Private Placement Legend.

     

    “Restricted
      Period”
      means
      the 40-day distribution compliance period as defined in Regulation
      S. 

     

    “Rule
      144”
      means
      Rule 144 promulgated under the Securities Act.

     

    “Rule
      144A”
      means
      Rule 144A promulgated under the Securities Act.

     

    “Rule
      903”
      means
      Rule 903 promulgated under the Securities Act.

     

    “Rule
      904”
      means
      Rule 904 promulgated under the Securities Act.

     

    “SEC”
      means
      the United States Securities and Exchange Commission.

     

    “Securities
      Act”
      means
      the Securities Act of 1933, as amended.

     

    “Shelf
      Registration Statement”
      means a
      registration statement under the Securities Act registering the Depositary
      Units
      issuable on conversion of the Notes for resale pursuant to the terms of the
      Registration Rights Agreement. 

     

    “Significant
      Subsidiary”
      means
      any Subsidiary which would be a “significant subsidiary” as defined in Article
      1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act,
      as
      such regulation is in effect on the Issuance Date.

     


    
      
        
        

      

      
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    “Stated
      Maturity”
means,
      with respect to any installment of interest or principal on any series of
      Indebtedness, the date on which such payment of interest or principal was
      scheduled to be paid in the original documentation governing such Indebtedness,
      and shall not include any contingent obligations to repay, redeem or repurchase
      any such interest, accreted value, or principal prior to the date originally
      scheduled for the payment or accretion thereof.

     

    “Subsidiary”
      means,
      with respect to any specified Person:

     

    (1)
       any
      corporation, association or other business entity of which more than 50% of
      the
      total Voting Stock is at the time owned or Controlled, directly or indirectly,
      by that Person or one or more of the other Subsidiaries of that Person (or
      a
      combination thereof); and

     

    (2)
       any
      partnership (a) the sole general partner or the managing general partner of
      which is such Person or a Subsidiary of such Person or (b) the only general
      partners of which are that Person or one or more Subsidiaries of that Person
      (or
      any combination thereof).

     

    For
      the
      avoidance of doubt, AREH will be deemed to be a Subsidiary of AREP so long
      as
      AREH remains a Guarantor.

     

    “Tangible
      Net Worth”
      of any
      specified Person as of any date means, the total shareholders’ equity (or if
      such Person were not a corporation, the equivalent account) of such Person
      and
      its Subsidiaries on a consolidated basis determined in conformity with GAAP
      less
      any and all goodwill and other intangible assets reflected on the consolidated
      balance sheet of such Person as of the last day of the fiscal quarter most
      recently completed before the date of determination for which financial
      statements are then available, but taking into account any change in total
      shareholders’ equity (or the equivalent account) as a result of any (x)
      Restricted Payments (as defined in the 2005 Indenture) made, (y) asset sales
      or
      (z) contributions to equity or from the issuance or sale of Equity Interests
      (excluding Disqualified Stock) or from the exchange or conversion (other than
      to
      Disqualified Stock) of Disqualified Stock or debt securities, completed since
      such fiscal quarter end.

     

    “Termination
      of Trading”
means
      that the Depositary Units or other securities into which the Notes are then
      convertible are not listed for trading on an Eligible Market. 

     

    “TIA”
      means
      the Trust Indenture Act of 1939, as amended (15 U.S.C.
§§ 77aaa-77bbbb).

     

    “Trading
      Day”
means
      (a) if the applicable security is listed or admitted for trading on an Eligible
      Market, a day on such Eligible Market is open for business or (b) if the
      applicable security is not so listed, admitted for trading or quoted, any
      Business Day.

     

    “Trustee”
      means
      Wilmington Trust Company until a successor replaces it in accordance with the
      applicable provisions of this Indenture and thereafter means the successor
      serving hereunder.

     

    “Unrestricted
      Definitive Note”
      means a
      Definitive Note that does not bear and is not required to bear the Private
      Placement Legend.

     

    “Unrestricted
      Global Note”
      means a
      Global Note that does not bear and is not required to bear the Private Placement
      Legend.

     

    “U.S.
      Person”
      means a
      U.S. Person as defined in Rule 902(k) promulgated under the Securities
      Act.

     


    
      
        
        

      

      
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          13 -

        
          

        

      

      
        
        

      

    


    “Voting
      Stock”
      means,
      with respect to any Person that is (a) a corporation, any class or series of
      capital stock of such Person that is ordinarily entitled to vote in the election
      of directors thereof at a meeting of stockholders called for such purpose,
      without the occurrence of any additional event or contingency, (b) a limited
      liability company, membership interests entitled to manage, or to elect or
      appoint the Persons that will manage the operations or business of the limited
      liability company, or (c) a partnership, partnership interests entitled to
      elect
      or replace the general partner thereof.

     

    “VWAP”
means,
      for any security as of any date, the dollar volume-weighted average price for
      such security on the principal market or exchange on which such security is
      traded during the period beginning at 9:30:01 a.m., New York City time (or
      such
      other time as such principal market or exchange publicly announces is the
      official open of trading), and ending at 4:00:00 p.m., New York City time (or
      such other time as such principal market or exchange publicly announces is
      the
      official close of trading) as reported by Bloomberg through its “Volume at
      Price” functions, or, if the foregoing does not apply, the dollar
      volume-weighted average price of such security in the over-the-counter market
      on
      the electronic bulletin board for such security during the period beginning
      at
      9:30:01 a.m., New York City time (or such other time as such market publicly
      announces is the official open of trading), and ending at 4:00:00 p.m., New
      York
      City time (or such other time as such market publicly announces is the official
      close of trading) as reported by Bloomberg, or, if no dollar volume-weighted
      average price is reported for such security by Bloomberg for such hours, the
      average of the highest closing bid price and the lowest closing ask price of
      any
      of the market makers for such security as reported in the “pink sheets” by Pink
      Sheets LLC (formerly the National Quotation Bureau, Inc.). If the VWAP cannot
      be
      calculated for a security on a particular date on any of the foregoing bases,
      the VWAP of such security on such date shall be the fair market value as
      determined in good faith by the Company, absent manifest error. All such
      determinations to be appropriately adjusted for any stock dividend, stock split,
      stock combination or other similar transaction during the applicable calculation
      period.

     

    Section
      1.02 Other
      Definitions.

     

    (a) 2005
      Indenture. Whenever,
      in this Indenture, it is provided that a term will be “as defined in the 2005
      Indenture” the relevant 2005 Indenture definition is incorporated herein by
      reference and forms a part hereof as if it had been set forth in its
      entirety herein and such definition will continue to be applicable in
      the event  the 2005 Indenture is defeased, discharged or terminated for any
      reason.

     

    (b)
      Terms Defined Elsewhere in this Indenture.

     

    
      	 	 	
              Defined
                in 

            
	
              Term

            	 	
              Section

            
	
              “Affiliate
                Transaction”

            	 	
              4.08

            
	
              “Application
                Date”

            	 	
              14.01

            
	
              “Authentication
                Order”

            	 	
              2.02

            
	
              “Calculation
                Date”

            	 	
              1.01

            
	
              “Clause
                (6) Indebtedness”

            	 	
              6.01

            
	
              “Conversion
                Date”

            	 	
              12.02

            
	
              “Covenant
                Defeasance”

            	 	
              8.03

            
	
              “Current
                Market Price per Depositary Unit”

            	 	
              12.11

            
	
              “Depositary
                Unit Delivery Date”

            	 	
              12.07

            
	
              “Depositary
                Unit Price Cap”

            	 	
              15.01

            
	
              “Depositary
                Unit Price Threshold”

            	 	
              15.01

            
	
              “Dilutive
                Issuance”

            	 	
              12.11

            
	
              “DTC”

            	 	
              2.03

            
	
              “Effective
                Date”

            	 	
              15.1

            
	
              “Event
                of Default”

            	 	
              6.01

            
	
              “Expiration
                Date”

            	 	
              12.11

            
	
              “Expiration
                Time”

            	 	
              12.11

            
	
              “Forced
                Conversion”

            	 	
              12.03

            
	
              “Forced
                Conversion Date”

            	 	
              12.03

            
	
              “Forced
                Conversion Equity Conditions Failure”

            	 	
              12.03

            
	
              “Forced
                Conversion Notice”

            	 	
              12.03

            
	
              “Forced
                Conversion Notice Date”

            	 	
              12.03

            
	
              “Fundamental
                Change Company Notice

            	 	
              13.01

            
	
              “Fundamental
                Change Conversion”

            	 	
              12.01

            
	
              “Fundamental
                Change Repurchase”

            	 	
              13.01

            
	
              “Fundamental
                Change Repurchase Notice”

            	 	
              13.01

            
	
              “Fundamental
                Change Repurchase Period”

            	 	
              13.01

            
	
              “Fundamental
                Change Repurchase Price”

            	 	
              13.01

            
	
              “Interest
                Rate”
                

            	 	
              3.01

            
	
              “Make-Whole
                Premium”

            	 	
              15.01

            
	
              “Make-Whole
                Premium Table

            	 	
              15.01

            
	
              “Notice
                of Conversion”

            	 	
              12.02

            
	
              “Paying
                Agent”

            	 	
              2.03

            
	
              “Poison
                Pill”

            	 	
              12.11

            
	
              “Purchased
                Depositary Units

            	 	
              12.11

            
	
              “Registrar”

            	 	
              2.03

            
	
              “Trigger
                Event”

            	 	
              12.11

            
	
              “Triggering
                Distribution”

            	 	
              4.07

            
	
              “Triggering
                Distribution Threshold Amount”

            	 	
              4.07

            


    

    


    Section
      1.03 Rules
      of Construction.

     

    Unless
      the context otherwise requires:

     

    (1)
      a
      term has the meaning assigned to it;

     

    (2)
      an
      accounting term not otherwise defined has the meaning assigned to it in
      accordance with GAAP;

     

    (3)
“or”
      is not exclusive;

     

    (4)
      words
      in the singular include the plural, and in the plural include the
      singular;

     

    (5)
      “will” shall be interpreted to express a command; 

     

    (6)
      provisions apply to successive events and transactions; and

     

    (7)
      references to sections of or rules under the Securities Act will be deemed
      to
      include substitute, replacement of successor sections or rules adopted by the
      SEC from time to time.

     


    
      
        
        

      

      
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          14 -

        
          

        

      

      
        
        

      

    


    ARTICLE
      2

    THE
      NOTES

     

    Section
      2.01 Form
      and Dating.

     

    (a) General.
      The
      aggregate principal amount of Notes that may be authenticated and delivered
      under this Indenture is initially limited to $600,000,000, except for Notes
      authenticated and delivered upon registration or transfer of, or in exchange
      for, or in lieu of, other Notes pursuant to Section 2.06. Other than as set
      forth in the preceding sentence, the Company shall not issue any Notes under
      this Indenture.

     

    The
      Notes
      shall be known and designated as the “Variable
      Rate Senior Convertible Notes Due 2013”
of
      the
      Company. The principal amount shall be payable at the Maturity Date, or at
      the
      election of each Holder upon a Fundamental Change as provided for under this
      Indenture. The Notes shall rank pari
      passu with
      all
      unsecured and unsubordinated indebtedness of the Company, including, without
      limitation, the 8 1/8% Senior Notes and the 7 1/8% Senior Notes.

     

    The
      Notes
      and the Trustee’s certificate of authentication will be substantially in the
      form of Exhibits A1 and A2 hereto. The Notes may have notations, legends or
      endorsements required by law, stock exchange rule or usage. Each Note will
      be
      dated the date of its authentication. The Notes shall be in denominations of
      $1,000 and integral multiples thereof.

     

    The
      terms
      and provisions contained in the Notes will constitute, and are hereby expressly
      made, a part of this Indenture and the Company, the Guarantor and the Trustee,
      by their execution and delivery of this Indenture, expressly agree to such
      terms
      and provisions and to be bound thereby. However, to the extent any provision
      of
      any Note conflicts with the express provisions of this Indenture, the provisions
      of this Indenture shall govern and be controlling.

     

    The
      Notes
      shall not have the benefit of a sinking fund.

     

    Except
      as
      provided in Article 14 hereof, the Notes may not be redeemed or prepaid in
      whole
      or in part at the option of the Company, at any time prior to the Maturity
      Date;
      provided, however
      that the
      Company and/or its Subsidiaries are not prohibited from purchasing Notes in
      privately negotiated or open market transactions, by tender offer or
      otherwise.

     

    (b) Global
      Notes.
      Notes
      issued in global form will be substantially in the form of Exhibits A1 or A2
      attached hereto (including the Global Note Legend thereon and the “Schedule of
      Exchanges of Interests in the Global Note” attached thereto). Notes issued in
      definitive form will be substantially in the form of Exhibit A1 hereto (but
      without the Global Note Legend thereon and without the “Schedule of Exchanges of
      Interests in the Global Note” attached thereto). Each Global Note will represent
      such of the outstanding Notes as will be specified therein and each shall
      provide that it represents the aggregate principal amount of outstanding Notes
      from time to time endorsed thereon and that the aggregate principal amount
      of
      outstanding Notes represented thereby may from time to time be reduced or
      increased, as appropriate, to reflect conversions, exchanges, redemptions and
      repurchases. Any endorsement of a Global Note to reflect the amount of any
      increase or decrease in the aggregate principal amount of outstanding Notes
      represented thereby will be made by the Trustee or the Custodian, at the
      direction of the Trustee, in accordance with instructions given by the Holder
      thereof as required by Section 2.06 hereof.

     

    (c) Temporary
      Global Notes.
      Notes
      offered and sold in reliance on Regulation S will be issued initially in the
      form of the Regulation S Temporary Global Note, which will be deposited on
      behalf of the

     


    
      
        
        

      

      
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          15 -

        
          

        

      

      
        
        

      

    


    purchasers
      of the Notes represented thereby with the Trustee, as custodian for the
      Depositary, and registered in the name of the Depositary or the nominee of
      the
      Depositary for the accounts of designated agents holding on behalf of Euroclear
      or Clearstream, duly executed by the Company and authenticated by the Trustee
      as
      hereinafter provided. The Restricted Period will be terminated upon the receipt
      by the Trustee of:

     

    (1)
      a
      written certificate from the Depositary, together with copies of certificates
      from Euroclear and Clearstream certifying that they have received certification
      of non-United States beneficial ownership of 100% of the aggregate principal
      amount of the Regulation S Temporary Global Note (except to the extent of any
      beneficial owners thereof who acquired an interest therein during the Restricted
      Period pursuant to another exemption from registration under the Securities
      Act
      and who will take delivery of a beneficial ownership interest in a 144A Global
      Note or an IAI Global Note bearing a Private Placement Legend, all as
      contemplated by Section 2.06(b) hereof); and

     

    (2)
      an
      Officers’ Certificate from the Company.

     

    Following
      the termination of the Restricted Period, beneficial interests in the Regulation
      S Temporary Global Note will be exchanged for beneficial interests in the
      Regulation S Permanent Global Note pursuant to the Applicable Procedures.
      Simultaneously with the authentication of the Regulation S Permanent Global
      Note, the Trustee will cancel the Regulation S Temporary Global Note. The
      aggregate principal amount of the Regulation S Temporary Global Note and the
      Regulation S Permanent Global Note may from time to time be increased or
      decreased by adjustments made on the records of the Trustee and the Depositary
      or its nominee, as the case may be, in connection with transfers of interest
      as
      hereinafter provided.

     

    (d) Euroclear
      and Clearstream Procedures Applicable.
      The
      provisions of the “Operating Procedures of the Euroclear System” and “Terms and
      Conditions Governing Use of Euroclear” and the “General Terms and Conditions of
      Clearstream Banking” and “Customer Handbook” of Clearstream will be applicable
      to transfers of beneficial interests in the Regulation S Temporary Global Note
      and the Regulation S Permanent Global Note that are held by Participants through
      Euroclear or Clearstream. 

     

    Section
      2.02 Execution
      and Authentication.

     

    At
      least
      one Officer must sign the Notes for the Company by manual or facsimile
      signature. 

     

    If
      an
      Officer whose signature is on a Note no longer holds that office at the time
      a
      Note is authenticated, the Note will nevertheless be valid.

     

    A
      Note
      will not be valid until authenticated by the manual signature of the Trustee.
      The signature will be conclusive evidence that the Note has been authenticated
      under this Indenture.

     

    The
      Trustee will, upon receipt of a written order of the Company signed by two
      Officers (an “Authentication
      Order”),
      authenticate Notes for original issue that may be validly issued under this
      Indenture, including any Additional Notes up to the aggregate principal amount
      stated in such Authentication Order. The aggregate principal amount of Notes
      outstanding at any time may not exceed the aggregate principal amount of Notes
      authorized for issuance by the Company pursuant to one or more Authentication
      Orders, except as provided in Section 2.07 hereof. 

     

    The
      Trustee may appoint an authenticating agent acceptable to the Company to
      authenticate Notes. An authenticating agent may authenticate Notes whenever
      the
      Trustee may do so. Each reference

     


    
      
        
        

      

      
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          16 -

        
          

        

      

      
        
        

      

    


    in
      this
      Indenture to authentication by the Trustee includes authentication by such
      agent. An authenticating agent has the same rights as an Agent to deal with
      Holders or an Affiliate of the Company.

     

    Section
      2.03 Registrar
      and Paying Agent.

     

    The
      Company will maintain an office or agency where Notes may be presented for
      registration of transfer or for exchange (“Registrar”),
      an
      office or agency where Notes may be presented for payment (“Paying
      Agent”)
      and an
      office or agency where Notes may be presented for conversion. The Registrar
      will
      keep a register of the Notes and of their transfer, repurchase, redemption,
      conversion and exchange. The Company may appoint one or more co-registrars,
      one
      or more additional paying agents and/or conversion agents. The term “Registrar”
includes any co-registrar, the term “Paying Agent” includes any additional
      paying agent and the term “Conversion Agent” includes and additional conversion
      agent. The Company may change any Paying Agent or Registrar without notice
      to
      any Holder. The Company will notify the Trustee in writing of the name and
      address of any Agent not a party to this Indenture. If the Company fails to
      appoint or maintain another entity as Registrar, Paying Agent or Conversion
      Agent, the Trustee shall act as such. The Company or any of its Subsidiaries
      may
      act as Paying Agent or Registrar or Conversion Agent.

     

    The
      Company initially appoints The Depository Trust Company (“DTC”)
      to act
      as Depositary with respect to the Global Notes.

     

    The
      Company initially appoints the Trustee to act as the Registrar and Paying Agent
      and to act as Custodian with respect to the Global Notes.

     

    Section
      2.04 Paying
      Agent to Hold Money in Trust.

     

    The
      Company will require each Paying Agent other than the Trustee to agree in
      writing that the Paying Agent will hold in trust for the benefit of Holders
      or
      the Trustee all money held by the Paying Agent for the payment of principal,
      premium or Additional Interest, if any, or interest on the Notes, and will
      notify the Trustee of any default by the Company in making any such payment.
      While any such default continues, the Trustee may require a Paying Agent to
      pay
      all money held by it to the Trustee. The Company at any time may require a
      Paying Agent to pay all money held by it to the Trustee. Upon payment over
      to
      the Trustee, the Paying Agent (if other than the Company or a Subsidiary) will
      have no further liability for the money. If the Company or a Subsidiary acts
      as
      Paying Agent, it will segregate and hold in a separate trust fund for the
      benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy
      or reorganization proceedings relating to the Company, the Trustee will serve
      as
      Paying Agent for the Notes.

     

    Section
      2.05 Holder
      Lists.

     

    The
      Trustee will preserve in as current a form as is reasonably practicable the
      most
      recent list available to it of the names and addresses of all Holders and shall
      otherwise comply with TIA § 312(a). If the Trustee is not the Registrar,
      the Company will furnish to the Trustee at least seven Business Days before
      each
      interest payment date and at such other times as the Trustee may request in
      writing, a list in such form and as of such date as the Trustee may reasonably
      require of the names and addresses of the Holders of Notes and the Company
      shall
      otherwise comply with TIA § 312(a).

     

    Section
      2.06 Transfer
      and Exchange.

     

    (a) Transfer
      and Exchange of Global Notes.
      A
      Global Note may not be transferred except as a whole by the Depositary to a
      nominee of the Depositary, by a nominee of the Depositary to the

     


    
      
        
        

      

      
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    Depositary
      or to another nominee of the Depositary, or by the Depositary or any such
      nominee to a successor Depositary or a nominee of such successor Depositary.
      All
      Global Notes will be exchanged by the Company for Definitive Notes
      if:

     

    (1)
      the
      Company delivers to the Trustee notice from the Depositary that it is unwilling
      or unable to continue to act as Depositary or that it is no longer a clearing
      agency registered under the Exchange Act and, in either case, a successor
      Depositary is not appointed by the Company within 120 days after the date of
      such notice from the Depositary; 

     

    (2)
      the
      Company in its sole discretion determines that the Global Notes (in whole but
      not in part) should be exchanged for Definitive Notes and delivers a written
      notice to such effect to the Trustee; provided
      that in
      no event shall the Regulation S Temporary Global Note be exchanged by the
      Company for Definitive Notes prior to (A) the expiration of the Restricted
      Period and (B) the receipt by the Registrar of any certificates required
      pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act; or

     

    (3)
      there
      has occurred and is continuing a Default or Event of Default with respect to
      the
      Notes.

     

    Upon
      the
      occurrence of either of the preceding events in (1) or (2) above, Definitive
      Notes shall be issued in such names as the Depositary shall instruct the
      Trustee. Global Notes also may be exchanged or replaced, in whole or in part,
      as
      provided in Sections 2.07 and 2.10 hereof. Every Note authenticated and
      delivered in exchange for, or in lieu of, a Global Note or any portion thereof,
      pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be
      authenticated and delivered in the form of, and shall be, a Global Note. A
      Global Note may not be exchanged for another Note other than as provided in
      this
      Section 2.06(a), however, beneficial interests in a Global Note may be
      transferred and exchanged as provided in Section 2.06(b) or (c)
      hereof.

     

    (b) Transfer
      and Exchange of Beneficial Interests in the Global Notes.
      The
      transfer and exchange of beneficial interests in the Global Notes will be
      effected through the Depositary, in accordance with the provisions of this
      Indenture and the Applicable Procedures. Beneficial interests in the Restricted
      Global Notes will be subject to restrictions on transfer comparable to those
      set
      forth herein to the extent required by the Securities Act. Transfers of
      beneficial interests in the Global Notes also will require compliance with
      either subparagraph (1) or (2) below, as applicable, as well as one or more
      of
      the other following subparagraphs, as applicable:

     

    (1)
      Transfer
      of Beneficial Interests in the Same Global Note.
      Beneficial interests in any Restricted Global Note may be transferred to Persons
      who take delivery thereof in the form of a beneficial interest in the same
      Restricted Global Note in accordance with the transfer restrictions set forth
      in
      the Private Placement Legend; provided,
      however,
      that
      prior to the expiration of the Restricted Period, transfers of beneficial
      interests in the Regulation S Temporary Global
      Note may not be made to a U.S. Person or for the account or benefit of a U.S.
      Person (other than an Initial Purchasers). Beneficial interests in any
      Unrestricted Global Note may be transferred to Persons who take delivery thereof
      in the form of a beneficial interest in an Unrestricted Global Note. No written
      orders or instructions shall be required to be delivered to the Registrar to
      effect the transfers described in this Section 2.06(b)(1).

     

    (2)
      All
      Other Transfers and Exchanges of Beneficial Interests in Global
      Notes.
      In
      connection with all transfers and exchanges of beneficial interests that are
      not
      subject to Section 2.06(b)(1) above, the transferor of such beneficial interest
      must deliver to the Registrar either:

     


    
      
        
        

      

      
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    (A) both:
      

     

    (i) a
      written
      order from a Participant or an Indirect Participant given to the Depositary
      in
      accordance with the Applicable Procedures directing the Depositary to credit
      or
      cause to be credited a beneficial interest in another Global Note in an amount
      equal to the beneficial interest to be transferred or exchanged;
      and

     

    (ii) instructions
      given in accordance with the Applicable Procedures containing information
      regarding the Participant account to be credited with such increase; or


     

    (B) both:

     

    (i) a
      written
      order from a Participant or an Indirect Participant given to the Depositary
      in
      accordance with the Applicable Procedures directing the Depositary to cause
      to
      be issued a Definitive Note in an amount equal to the beneficial interest to
      be
      transferred or exchanged; and

     

    (ii) instructions
      given by the Depositary to the Registrar containing information regarding the
      Person in whose name such Definitive Note shall be registered to effect the
      transfer or exchange referred to in (1) above; provided
      that in
      no event shall Definitive Notes be issued upon the transfer or exchange of
      beneficial interests in the Regulation S Temporary Global Note prior to (A)
      the
      expiration of the Restricted Period and (B) the receipt by the Registrar of
      any
      certificates required pursuant to Rule 903 under the Securities Act. Upon
      satisfaction of all of the requirements for transfer or exchange of beneficial
      interests in Global Notes contained in this Indenture and the Notes or otherwise
      applicable under the Securities Act, the Trustee shall adjust the principal
      amount of the relevant Global Note(s) pursuant to Section 2.06(g)
      hereof.

     

    (3)
      Transfer
      of Beneficial Interests to Another Restricted Global Note.
      A
      beneficial interest in any Restricted Global Note may be transferred to a Person
      who takes delivery thereof in the form of a beneficial interest in another
      Restricted Global Note if the transfer complies with the requirements of Section
      2.06(b)(2) above and the Registrar receives the following:

     

    (A) if
      the
      transferee will take delivery in the form of a beneficial interest in the 144A
      Global Note, then the transferor must deliver a certificate in the form of
      Exhibit B hereto, including the certifications in item (1) thereof;

     

    (B) if
      the
      transferee will take delivery in the form of a beneficial interest in the
      Regulation S Temporary Global Note or the Regulation S Permanent Global Note,
      then the transferor must deliver a certificate in the form of Exhibit B hereto,
      including the certifications in item (2) thereof; and

     

    (C) if
      the
      transferee will take delivery in the form of a beneficial interest in the IAI
      Global Note, then the transferor must deliver a certificate in the form of
      Exhibit B hereto, including the certifications, certificates and Opinion of
      Counsel required by item (3) thereof, if applicable.

     


    
      
        
        

      

      
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    (4)
      Transfer and Exchange of Beneficial Interests in a Restricted Global Note for
      Beneficial Interests in an Unrestricted Global Note. A beneficial interest
      in
      any Restricted Global Note may be exchanged by any holder thereof for a
      beneficial interest in an Unrestricted Global Note or transferred to a Person
      who takes delivery thereof in the form of a beneficial interest in an
      Unrestricted Global Note if the exchange or transfer complies with the
      requirements of Section 2.06(b)(2) above and the Registrar receives the
      following:

     

    (A) if
      the
      holder of such beneficial interest in a Restricted Global Note proposes to
      exchange such beneficial interest for a beneficial interest in an Unrestricted
      Global Note, a certificate from such holder in the form of Exhibit C hereto,
      including the certifications in item (1)(a) thereof; or

     

    (B) if
      the
      holder of such beneficial interest in a Restricted Global Note proposes to
      transfer such beneficial interest to a Person who shall take delivery thereof
      in
      the form of a beneficial interest in an Unrestricted Global Note, a certificate
      from such holder in the form of Exhibit B hereto, including the certifications
      in item (4) thereof,

     

    and,
      in
      each such case set forth in this subparagraph (4), if the Registrar so requests
      or if the Applicable Procedures so require, an Opinion of Counsel in form
      reasonably acceptable to the Registrar to the effect that such exchange or
      transfer is in compliance with the Securities Act and that the restrictions
      on
      transfer contained herein and in the Private Placement Legend are no longer
      required in order to maintain compliance with the Securities Act.

     

    If
      any
      such transfer is effected pursuant to subparagraph (4) above at a time when
      an
      Unrestricted Global Note has not yet been issued, the Company shall issue and,
      upon receipt of an Authentication Order in accordance with Section 2.02 hereof,
      the Trustee shall authenticate one or more Unrestricted Global Notes in an
      aggregate principal amount equal to the aggregate principal amount of beneficial
      interests transferred pursuant to subparagraph (4) above.

     

    Beneficial
      interests in an Unrestricted Global Note cannot be exchanged for, or transferred
      to Persons who take delivery thereof in the form of, a beneficial interest
      in a
      Restricted Global Note.

     

    (c) Transfer
      or Exchange of Beneficial Interests for Definitive Notes.

     

    (1)
      Beneficial
      Interests in Restricted Global Notes to Restricted Definitive
      Notes.
      If any
      holder of a beneficial interest in a Restricted Global Note proposes to exchange
      such beneficial interest for a Restricted Definitive Note or to transfer such
      beneficial interest to a Person who takes delivery thereof in the form of a
      Restricted Definitive Note, then, upon receipt by the Registrar of the following
      documentation:

     

    (A) if
      the
      holder of such beneficial interest in a Restricted Global Note proposes to
      exchange such beneficial interest for a Restricted Definitive Note, a
      certificate from such holder in the form of Exhibit C hereto, including the
      certifications in item (2)(a) thereof;

     

    (B) if
      such
      beneficial interest is being transferred to a QIB in accordance with Rule 144A,
      a certificate to the effect set forth in Exhibit B hereto, including the
      certifications in item (1) thereof;

     


    
      
        
        

      

      
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    (C) if
      such
      beneficial interest is being transferred to a Non-U.S. Person in an offshore
      transaction in accordance with Rule 903 or Rule 904, a certificate to the effect
      set forth in Exhibit B hereto, including the certifications in item (2)
      thereof;

     

    (D) if
      such
      beneficial interest is being transferred pursuant to an exemption from the
      registration requirements of the Securities Act in accordance with Rule 144,
      a
      certificate to the effect set forth in Exhibit B hereto, including the
      certifications in item (3)(a) thereof;

     

    (E) if
      such
      beneficial interest is being transferred to an Institutional Accredited Investor
      in reliance on an exemption from the registration requirements of the Securities
      Act other than those listed in subparagraphs (B) through (D) above, a
      certificate to the effect set forth in Exhibit B hereto, including the
      certifications, certificates and Opinion of Counsel required by item (3)
      thereof, if applicable;

     

    (F) if
      such
      beneficial interest is being transferred to the Company or any of its
      Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
      including the certifications in item (3)(b) thereof; or

     

    (G) if
      such
      beneficial interest is being transferred pursuant to an effective registration
      statement under the Securities Act, a certificate to the effect set forth in
      Exhibit B hereto, including the certifications in item (3)(c)
      thereof,

     

    the
      Trustee shall cause the aggregate principal amount of the applicable Global
      Note
      to be reduced accordingly pursuant to Section 2.06(g) hereof, and the Company
      shall execute and the Trustee shall authenticate and deliver to the Person
      designated in the instructions a Definitive Note in the appropriate principal
      amount. Any Definitive Note issued in exchange for a beneficial interest in
      a
      Restricted Global Note pursuant to this Section 2.06(c) shall be registered
      in
      such name or names and in such authorized denomination or denominations as
      the
      holder of such beneficial interest shall instruct the Registrar through
      instructions from the Depositary and the Participant or Indirect Participant.
      The Trustee shall deliver such Definitive Notes to the Persons in whose names
      such Notes are so registered. Any Definitive Note issued in exchange for a
      beneficial interest in a Restricted Global Note pursuant to this Section
      2.06(c)(1) shall bear the Private Placement Legend and shall be subject to
      all
      restrictions on transfer contained therein.

     

    (2)
      Beneficial
      Interests in Regulation S Temporary Global Note to Definitive
      Notes.
      Notwithstanding Sections 2.06(c)(1)(A) and (C) hereof, a beneficial interest
      in
      the Regulation S Temporary Global Note may not be exchanged for a Definitive
      Note or transferred to a Person who takes delivery thereof in the form of a
      Definitive Note prior to (A) the expiration of the Restricted Period and (B)
      the
      receipt by the Registrar of any certificates required pursuant to Rule
      903(b)(3)(ii)(B) under the Securities Act, except in the case of a transfer
      pursuant to an exemption from the registration requirements of the Securities
      Act other than Rule 903 or Rule 904.

     

    (3)
      Beneficial
      Interests in Restricted Global Notes to Unrestricted Definitive
      Notes.
      A holder
      of a beneficial interest in a Restricted Global Note may exchange such
      beneficial interest for an Unrestricted Definitive Note or may transfer such
      beneficial interest to a Person who takes delivery thereof in the form of an
      Unrestricted Definitive Note only if the Registrar receives the
      following:

     


    
      
        
        

      

      
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    (A) if
      the
      holder of such beneficial interest in a Restricted Global Note proposes to
      exchange such beneficial interest for an Unrestricted Definitive Note, a
      certificate from such holder in the form of Exhibit C hereto, including the
      certifications in item (1)(b) thereof; or

     

    (B) if
      the
      holder of such beneficial interest in a Restricted Global Note proposes to
      transfer such beneficial interest to a Person who shall take delivery thereof
      in
      the form of an Unrestricted Definitive Note, a certificate from such holder
      in
      the form of Exhibit B hereto, including the certifications in item (4)
      thereof;

     

    and,
      in
      each such case set forth in this subparagraph (3), if the Registrar so requests
      or if the Applicable Procedures so require, an Opinion of Counsel in form
      reasonably acceptable to the Registrar to the effect that such exchange or
      transfer is in compliance with the Securities Act and that the restrictions
      on
      transfer contained herein and in the Private Placement Legend are no longer
      required in order to maintain compliance with the Securities Act.

     

    (4)
      Beneficial
      Interests in Unrestricted Global Notes to Unrestricted Definitive
      Notes.
      If any
      holder of a beneficial interest in an Unrestricted Global Note proposes to
      exchange such beneficial interest for a Definitive Note or to transfer such
      beneficial interest to a Person who takes delivery thereof in the form of a
      Definitive Note, then, upon satisfaction of the conditions set forth in Section
      2.06(b)(2) hereof, the Trustee, upon receipt of an Authentication Order in
      accordance with Section 2.02 hereof, will cause the aggregate principal amount
      of the applicable Global Note to be reduced accordingly pursuant to Section
      2.06(g) hereof, and the Company will execute and the Trustee will authenticate
      and deliver to the Person designated in the instructions a Definitive Note
      in
      the appropriate principal amount. Any Definitive Note issued in exchange for
      a
      beneficial interest pursuant to this Section 2.06(c)(4) will be registered
      in
      such name or names and in such authorized denomination or denominations as
      the
      holder of such beneficial interest requests through instructions to the
      Registrar from or through the Depositary and the Participant or Indirect
      Participant. The Trustee will deliver such Definitive Notes to the Persons
      in
      whose names such Notes are so registered. Any Definitive Note issued in exchange
      for a beneficial interest pursuant to this Section 2.06(c)(4) will not bear
      the
      Private Placement Legend.

     

    (d) Transfer
      and Exchange of Definitive Notes for Beneficial Interests.

     

    (1)
      Restricted
      Definitive Notes to Beneficial Interests in Restricted Global
      Notes.
      If any
      Holder of a Restricted Definitive Note proposes to exchange such Note for a
      beneficial interest in a Restricted Global Note or to transfer such Restricted
      Definitive Notes to a Person who takes delivery thereof in the form of a
      beneficial interest in a Restricted Global Note, then, upon receipt by the
      Registrar of the following documentation:

     

    (A) if
      the
      Holder of such Restricted Definitive Note proposes to exchange such Note for
      a
      beneficial interest in a Restricted Global Note, a certificate from such Holder
      in the form of Exhibit C hereto, including the certifications in item (2)(b)
      thereof;

     

    (B) if
      such
      Restricted Definitive Note is being transferred to a QIB in accordance with
      Rule
      144A, a certificate to the effect set forth in Exhibit B hereto, including
      the
      certifications in item (1) thereof;

     

    (C) if
      such
      Restricted Definitive Note is being transferred to a Non-U.S. Person in an
      offshore transaction in accordance with Rule 903 or Rule 904, a certificate
      to
      the effect set forth in Exhibit B hereto, including the certifications in item
      (2) thereof;

     


    
      
        
        

      

      
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    (D) if
      such
      Restricted Definitive Note is being transferred pursuant to an exemption from
      the registration requirements of the Securities Act in accordance with Rule
      144,
      a certificate to the effect set forth in Exhibit B hereto, including the
      certifications in item (3)(a) thereof;

     

    (E) if
      such
      Restricted Definitive Note is being transferred to an Institutional Accredited
      Investor in reliance on an exemption from the registration requirements of
      the
      Securities Act other than those listed in subparagraphs (B) through (D) above,
      a
      certificate to the effect set forth in Exhibit B hereto, including the
      certifications, certificates and Opinion of Counsel required by item (3)
      thereof, if applicable;

     

    (F) if
      such
      Restricted Definitive Note is being transferred to the Company or any of its
      Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
      including the certifications in item (3)(b) thereof; or

     

    (G) if
      such
      Restricted Definitive Note is being transferred pursuant to an effective
      registration statement under the Securities Act, a certificate to the effect
      set
      forth in Exhibit B hereto, including the certifications in item (3)(c)
      thereof,

     

    the
      Trustee will cancel the Restricted Definitive Note, increase or cause to be
      increased the aggregate principal amount of, in the case of clause (A) above,
      the appropriate Restricted Global Note, in the case of clause (B) above, the
      144A Global Note, in the case of clause (C) above, the Regulation S Global
      Note,
      and in all other cases, the IAI Global Note.

     

    (2)
      Restricted
      Definitive Notes to Beneficial Interests in Unrestricted Global
      Notes.
      A Holder
      of a Restricted Definitive Note may exchange such Note for a beneficial interest
      in an Unrestricted Global Note or transfer such Restricted Definitive Note
      to a
      Person who takes delivery thereof in the form of a beneficial interest in an
      Unrestricted Global Note only if the Registrar receives the
      following:

     

    (A) if
      the
      Holder of such Definitive Notes proposes to exchange such Notes for a beneficial
      interest in the Unrestricted Global Note, a certificate from such Holder in
      the
      form of Exhibit C hereto, including the certifications in item (1)(c) thereof;
      or

     

    (B) if
      the
      Holder of such Definitive Notes proposes to transfer such Notes to a Person
      who
      shall take delivery thereof in the form of a beneficial interest in the
      Unrestricted Global Note, a certificate from such Holder in the form of Exhibit
      B hereto, including the certifications in item (4) thereof;

     

    and,
      in
      each such case set forth in this subparagraph (2), if the Registrar so requests
      or if the Applicable Procedures so require, an Opinion of Counsel in form
      reasonably acceptable to the Registrar to the effect that such exchange or
      transfer is in compliance with the Securities Act and that the restrictions
      on
      transfer contained herein and in the Private Placement Legend are no longer
      required in order to maintain compliance with the Securities Act.

     

    Upon
      satisfaction of the conditions of any of the subparagraphs in this Section
      2.06(d)(2), the Trustee will cancel the Definitive Notes and increase or cause
      to be increased the aggregate principal amount of the Unrestricted Global
      Note.

     

    (3)
      Unrestricted
      Definitive Notes to Beneficial Interests in Unrestricted Global
      Notes.
      A Holder
      of an Unrestricted Definitive Note may exchange such Note for a beneficial
      interest in an

     


    
      
        
        

      

      
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    Unrestricted
      Global Note or transfer such Definitive Notes to a Person who takes delivery
      thereof in the form of a beneficial interest in an Unrestricted Global Note
      at
      any time. Upon receipt of a request for such an exchange or transfer, the
      Trustee, upon receipt of an Authentication Order in accordance with Section
      2.02
      hereof, will cancel the applicable Unrestricted Definitive Note and increase
      or
      cause to be increased the aggregate principal amount of one of the Unrestricted
      Global Notes.

     

    If
      any
      such exchange or transfer from a Definitive Note to a beneficial interest is
      effected pursuant to subparagraphs (2)(B) or (3) above at a time when an
      Unrestricted Global Note has not yet been issued, the Company will issue and,
      upon receipt of an Authentication Order in accordance with Section 2.02 hereof,
      the Trustee will authenticate one or more Unrestricted Global Notes in an
      aggregate principal amount equal to the principal amount of Definitive Notes
      so
      transferred.

     

    (e) Transfer
      and Exchange of Definitive Notes for Definitive Notes.
      Upon
      request by a Holder of Definitive Notes and such Holder’s compliance with the
      provisions of this Section 2.06(e), the Registrar will register the transfer
      or
      exchange of Definitive Notes. Prior to such registration of transfer or
      exchange, the requesting Holder must present or surrender to the Registrar
      the
      Definitive Notes duly endorsed or accompanied by a written instruction of
      transfer in form satisfactory to the Registrar duly executed by such Holder
      or
      by its attorney, duly authorized in writing. In addition, the requesting Holder
      must provide any additional certifications, documents and information, as
      applicable, required pursuant to the following provisions of this Section
      2.06(e).

     

    (1)
      Restricted
      Definitive Notes to Restricted Definitive Notes.
      Any
      Restricted Definitive Note may be transferred to and registered in the name
      of
      Persons who take delivery thereof in the form of a Restricted Definitive Note
      if
      the Registrar receives the following:

     

    (A) if
      the
      transfer will be made pursuant to Rule 144A, then the transferor must deliver
      a
      certificate in the form of Exhibit B hereto, including the certifications in
      item (1) thereof;

     

    (B) if
      the
      transfer will be made pursuant to Rule 903 or Rule 904, then the transferor
      must
      deliver a certificate in the form of Exhibit B hereto, including the
      certifications in item (2) thereof; and

     

    (C) if
      the
      transfer will be made pursuant to any other exemption from the registration
      requirements of the Securities Act, then the transferor must deliver a
      certificate in the form of Exhibit B hereto, including the certifications,
      certificates and Opinion of Counsel required by item (3) thereof, if
      applicable.

     

    (2)
      Restricted
      Definitive Notes to Unrestricted Definitive Notes.
      Any
      Restricted Definitive Note may be exchanged by the Holder thereof for an
      Unrestricted Definitive Note or transferred to a Person or Persons who take
      delivery thereof in the form of an Unrestricted Definitive Note if the Registrar
      receives the following:

     

    (A) if
      the
      Holder of such Restricted Definitive Notes proposes to exchange such Notes
      for
      an Unrestricted Definitive Note, a certificate from such Holder in the form
      of
      Exhibit C hereto, including the certifications in item (1)(d) thereof;
      or

     

    (B) if
      the
      Holder of such Restricted Definitive Notes proposes to transfer such Notes
      to a
      Person who shall take delivery thereof in the form of an
      Unrestricted

     


    
      
        
        

      

      
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    Definitive
      Note, a certificate from such Holder in the form of Exhibit B hereto, including
      the certifications in item (4) thereof;

     

    and,
      in
      each such case set forth in this subparagraph (2), if the Registrar so requests,
      an Opinion of Counsel in form reasonably acceptable to the Registrar to the
      effect that such exchange or transfer is in compliance with the Securities
      Act
      and that the restrictions on transfer contained herein and in the Private
      Placement Legend are no longer required in order to maintain compliance with
      the
      Securities Act.

     

    (3)
      Unrestricted
      Definitive Notes to Unrestricted Definitive Notes.
      A Holder
      of Unrestricted Definitive Notes may transfer such Notes to a Person who takes
      delivery thereof in the form of an Unrestricted Definitive Note. Upon receipt
      of
      a request to register such a transfer, the Registrar shall register the
      Unrestricted Definitive Notes pursuant to the instructions from the Holder
      thereof.

     

    (f) Legends.
      The
      following legends will appear on the face of all Global Notes and Definitive
      Notes issued under this Indenture unless specifically stated otherwise in the
      applicable provisions of this Indenture.

     

    (1)
       Private
      Placement Legend.

     

    (A) Except
      as
      permitted by subparagraph (B) below, each Global Note and each Definitive Note
      (and all Notes issued in exchange therefor or substitution thereof) shall bear
      the legend in substantially the following form:

     

    “THE
      SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
      TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES
      SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) AND THE SECURITY
      EVIDENCED HEREBY AND THE DEPOSITARY UNITS ISSUABLE UPON CONVERSION HEREOF MAY
      NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
      REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE
      SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING
      ON
      THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT. THE HOLDER
      OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF AMERICAN
      REAL ESTATE PARTNERS, L.P.
      AND
      AMERICAN REAL ESTATE FINANCE CORP. THAT (A) SUCH SECURITY AND THE DEPOSITARY
      UNITS ISSUABLE UPON CONVERSION HEREOF MAY BE RESOLD, PLEDGED OR OTHERWISE
      TRANSFERRED ONLY (1) (a) IN THE UNITED STATES TO A PERSON WHO THE SELLER
      REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE
      144A
      UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
      144A, (b) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE
      WITH RULE 904 UNDER THE SECURITIES ACT, (c) IN A TRANSACTION MEETING THE
      REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (d) TO AN INSTITUTIONAL
      “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501 (a) (1), (2), (3) OR (7) OF THE
      SECURITIES ACT) THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED
      LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH
      CAN
      BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN
      AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF COUNSEL
      ACCEPTABLE TO AMERICAN REAL ESTATE PARTNERS, L.P. THAT SUCH TRANSFER IS IN
      COMPLIANCE WITH THE SECURITIES ACT OR (e) IN ACCORDANCE WITH ANOTHER EXEMPTION
      FROM THE REGISTRATION REQUIREMENTS OF THE

     


    
      
        
        

      

      
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    SECURITIES
      ACT (AND BASED UPON AN OPINION OF COUNSEL IF AMERICAN REAL ESTATE PARTNERS,
      L.P.
      SO REQUESTS), (2) TO AMERICAN REAL ESTATE PARTNERS, L.P. OR (3) PURSUANT TO
      AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY
      APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
      APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER
      IS
      REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY
      OF
      THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE. IF AT ANY TIME THE NEVADA GAMING
      COMMISSION FINDS THAT A HOLDER OF THIS SECURITY OR THE DEPOSITARY UNITS ISSUABLE
      UPON CONVERSION HEREOF IS UNSUITABLE TO CONTINUE TO OWN THE SECURITY (OR THE
      DEPOSITARY UNITS ISSUABLE UPON CONVERSION HEREOF), AMERICAN REAL ESTATE
      PARTNERS, L.P. SHALL HAVE THE RIGHT TO REQUIRE SUCH HOLDER TO DISPOSE OF SUCH
      SECURITY OR DEPOSITARY UNITS, AS APPLICABLE, AS PROVIDED BY THE GAMING LAWS OF
      THE STATE OF NEVADA AND THE REGULATIONS PROMULGATED THEREUNDER. ALTERNATIVELY,
      AMERICAN REAL ESTATE PARTNERS, L.P. SHALL HAVE THE RIGHT TO REDEEM THE SECURITY
      FROM THE HOLDER AT A PRICE SPECIFIED IN THE INDENTURE GOVERNING THE SECURITY.
      NEVADA GAMING LAWS AND REGULATIONS RESTRICT THE RIGHT UNDER CERTAIN
      CIRCUMSTANCES: (A) TO PAY OR RECEIVE ANY INTEREST UPON SUCH SECURITY; (B) TO
      EXERCISE, DIRECTLY OR THROUGH ANY TRUSTEE OR NOMINEE, ANY VOTING RIGHT CONFERRED
      BY SUCH SECURITY; OR (C) TO RECEIVE ANY REMUNERATION IN ANY FORM FROM AMERICAN
      REAL ESTATE PARTNERS, L.P., FOR SERVICES RENDERED OR OTHERWISE.”

     

    (B) Notwithstanding
      the foregoing, any Global Note or Definitive Note issued pursuant to
      subparagraphs (b)(4), (c)(3), (c)(4), (d)(2), (d)(3), (e)(2), or (e)(3) of
      this
      Section 2.06 (and all Notes issued in exchange therefor or substitution thereof)
      will not bear the Private Placement Legend.

     

    (2)
       Global
      Note Legend.
      Each
      Global Note will bear a legend in substantially the following form:

     

    “THIS
      GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING
      THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS
      HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT
      THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT
      TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN
      WHOLE
      BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL
      NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11
      OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR
      DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF AMERICAN REAL ESTATE PARTNERS,
      L.P.

     

    UNLESS
      AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM,
      THIS
      NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE
      OF
      THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
      NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
      SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
      CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
      TRUST
      COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE COMPANY OR ITS
      AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
      ISSUED

     


    
      
        
        

      

      
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    IS
      REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED
      BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE
      OF
      DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
      TO
      ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
      HAS AN INTEREST HEREIN.”

     

    (3)
       Regulation
      S Temporary Global Note Legend.
      The
      Regulation S Temporary Global Note will bear a Legend in substantially the
      following form:

     

    “THE
      RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE CONDITIONS
      AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES AND/OR DEPOSITARY
      UNITS UPON CONVERSION HEREOF, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED
      HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S
      TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST
      HEREON.”

     

    (g) Cancellation
      and/or Adjustment of Global Notes.
      At such
      time as all beneficial interests in a particular Global Note have been exchanged
      for Definitive Notes or a particular Global Note has been redeemed, repurchased,
      converted or canceled in whole and not in part, each such Global Note will
      be
      returned to or retained and canceled by the Trustee in accordance with Section
      2.11 hereof. At any time prior to such cancellation, if any beneficial interest
      in a Global Note is exchanged for or transferred to a Person who will take
      delivery thereof in the form of a beneficial interest in another Global Note
      or
      for Definitive Notes, or if any amount therein is repurchased, redeemed or
      converted, the principal amount of Notes represented by such Global Note will
      be
      reduced accordingly and an endorsement will be made on such Global Note by
      the
      Trustee or by the Depositary at the direction of the Trustee to reflect such
      reduction; and if the beneficial interest is being exchanged for or transferred
      to a Person who will take delivery thereof in the form of a beneficial interest
      in another Global Note, such other Global Note will be increased accordingly
      and
      an endorsement will be made on such Global Note by the Trustee or by the
      Depositary at the direction of the Trustee to reflect such
      increase.

     

    (h) General
      Provisions Relating to Transfers and Exchanges.

     

    (1)
       To
      permit
      registrations of transfers and exchanges, the Company will execute and the
      Trustee will authenticate Global Notes and Definitive Notes upon receipt of
      an
      Authentication Order in accordance with Section 2.02 hereof or at the
      Registrar’s request.

     

    (2)
       No
      service charge will be made to a Holder of a beneficial interest in a Global
      Note or to a Holder of a Definitive Note for any registration of conversion,
      repurchase, transfer or exchange, but the Company may require payment of a
      sum
      sufficient to cover any transfer tax or similar governmental charge payable
      in
      connection therewith (other than any such transfer taxes or similar governmental
      charge payable upon exchange or transfer pursuant to Sections 2.10 and 9.04
      and
      Article 13 hereof).

     

    (3)
       The
      Registrar will not be required to register the transfer of or exchange of any
      Note selected by the Holder for repurchase in whole or in part upon a
      Fundamental Change, except the unpurchased portion of any Note being repurchased
      in part.

     

    (4)
       All
      Global Notes and Definitive Notes issued upon any registration of transfer
      or
      exchange of Global Notes or Definitive Notes will be the valid obligations
      of
      the

     


    
      
        
        

      

      
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    Company,
      evidencing the same debt, and entitled to the same benefits under this
      Indenture, as the Global Notes or Definitive Notes surrendered upon such
      registration of transfer or exchange.

     

    (5)
       Neither
      the Registrar nor the Company will be required:

     

    (A) to
      register the transfer of or to exchange any Notes surrendered in whole or in
      part for repurchase in connection with a Fundamental Change (and not withdrawn)
      except the portion of any such Note being repurchased in part;

     

    (B) to
      register the transfer of or to exchange any Note surrendered for conversion
      at
      the option of the Holder in whole or in part, except the unconverted portion
      of
      any Note being converted in part; 

     

    (C) to
      register the transfer of or to exchange any Note selected in connection with
      a
      Forced Conversion in whole or in part, except the unconverted portion of any
      Note being converted in part; or 

     

    (D) to
      register the transfer of or to exchange a Note between a record date and the
      next succeeding interest payment date.

     

    (6)
       Prior
      to
      due presentment for the registration of a transfer of any Note, the Trustee,
      any
      Agent and the Company may deem and treat the Person in whose name any Note
      is
      registered as the absolute owner of such Note for the purpose of receiving
      payment of principal of and interest on such Notes and for all other purposes,
      and none of the Trustee, any Agent or the Company shall be affected by notice
      to
      the contrary.

     

    (7)
       The
      Trustee will authenticate Global Notes and Definitive Notes in accordance with
      the provisions of Section 2.02 hereof.

     

    (8)
       All
      certifications, certificates and Opinions of Counsel required to be submitted
      to
      the Registrar pursuant to this Section 2.06 to effect a registration of transfer
      or exchange may be submitted by facsimile.

     

    Section
      2.07 Replacement
      Notes.

     

    If
      any
      mutilated Note is surrendered to the Trustee or the Company and the Trustee
      receives evidence to its satisfaction of the destruction, loss or theft of
      any
      Note, the Company will issue and the Trustee, upon receipt of an Authentication
      Order, will authenticate a replacement Note if the Trustee’s requirements are
      met. If required by the Trustee or the Company, an indemnity bond must be
      supplied by the Holder that is sufficient in the judgment of the Trustee and
      the
      Company to protect the Company, the Trustee, any Agent and any authenticating
      agent from any loss that any of them may suffer if a Note is replaced. The
      Company may charge for its expenses in replacing a Note.

     

    Every
      replacement Note is an additional obligation of the Company and will be entitled
      to all of the benefits of this Indenture equally and proportionately with all
      other Notes duly issued hereunder.

     

    Section
      2.08 Outstanding
      Notes.

     

    The
      Notes
      outstanding at any time are all the Notes authenticated by the Trustee except
      for those canceled by it, those delivered to it for cancellation, those
      reductions in the interest in a Global Note

     


    
      
        
        

      

      
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    effected
      by the Trustee in accordance with the provisions hereof, and those described
      in
      this Section 2.08 as not outstanding. Except as set forth in Section 2.09
      hereof, a Note does not cease to be outstanding because the Company or an
      Affiliate of the Company holds the Note; however,
      Notes
      held by the Company or a Subsidiary of the Company shall not be deemed to be
      outstanding for purposes of Section 9.02 or Article 12 hereof. 

     

    If
      a Note
      is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless
      the Trustee receives proof satisfactory to it that the replaced Note is held
      by
      a protected purchaser.

     

    To
      the
      extent the principal amount of any Note is converted pursuant to Article 12
      or
      13, it ceases to be outstanding and interest on it ceases to accrue


     

    If
      the
      principal amount of any Note is considered paid under Section 4.01 hereof,
      it
      ceases to be outstanding and interest on it ceases to accrue.

     

    If
      the
      Paying Agent (other than the Company, a Subsidiary or an Affiliate of any
      thereof) holds, on a redemption date or maturity date, money sufficient to
      pay
      Notes payable on that date, then on and after that date such Notes will be
      deemed to be no longer outstanding and will cease to accrue
      interest.

     

    Section
      2.09 Treasury
      Notes.

     

    In
      determining whether the Holders of the required principal amount of Notes have
      concurred in any direction, waiver or consent, Notes owned by the Company or
      any
      Guarantor, or by any Person directly or indirectly controlling or controlled
      by
      or under direct or indirect common control with the Company or any Guarantor,
      will be considered as though not outstanding, except that for the purposes
      of
      determining whether the Trustee will be protected in relying on any such
      direction, waiver or consent, only Notes that the Trustee knows are so owned
      will be so disregarded.

     

    Section
      2.10 Temporary
      Notes.

     

    Until
      certificates representing Notes are ready for delivery, the Company may prepare
      and the Trustee, upon receipt of an Authentication Order, will authenticate
      temporary Notes. Temporary Notes will be substantially in the form of
      certificated Notes but may have variations that the Company considers
      appropriate for temporary Notes and as may be reasonably acceptable to the
      Trustee. Without unreasonable delay, the Company will prepare and the Trustee
      will authenticate definitive Notes in exchange for temporary Notes.

     

    Holders
      of temporary Notes will be entitled to all of the benefits of this
      Indenture.

     

    Section
      2.11 Cancellation.

     

    The
      Company at any time may deliver Notes to the Trustee for cancellation. The
      Registrar, Paying Agent and Conversion Agent will forward to the Trustee any
      Notes surrendered to them for registration of transfer, exchange, conversion,
      repurchase or payment. The Trustee and no one else will cancel all Notes
      surrendered for registration of transfer, exchange, conversion, repurchase,
      payment, replacement or cancellation and will destroy canceled Notes (subject
      to
      the record retention requirement of the Exchange Act). Certification of the
      destruction of all canceled Notes will be delivered to the Company. The Company
      may not issue new Notes to replace Notes that it has paid or that have been
      delivered to the Trustee for cancellation.

     


    
      
        
        

      

      
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    Section
      2.12 Defaulted
      Interest.

     

    If
      the
      Company defaults in a payment of interest on the Notes, it will pay the
      defaulted interest in any lawful manner plus, to the extent lawful, interest
      payable on the defaulted interest, to the Persons who are Holders on a
      subsequent special record date, in each case at the rate provided in the Notes
      and in Section 4.01 hereof. The Company will notify the Trustee in writing
      of
      the amount of defaulted interest proposed to be paid on each Note and the date
      of the proposed payment. The Company will fix or cause to be fixed each such
      special record date and payment date; provided
      that no
      such special record date may be less than 10 days prior to the related payment
      date for such defaulted interest. At least 15 days before the special record
      date, the Company (or, upon the written request of the Company, the Trustee
      in
      the name and at the expense of the Company) will mail or cause to be mailed
      to
      Holders a notice that states the special record date, the related payment date
      and the amount of such interest to be paid.

     

    Section
      2.13 CUSIP
      Numbers. 

     

    In
      issuing the Notes, the Company may use “CUSIP” numbers (if then generally in
      use), and, if so, the Trustee shall use “CUSIP” numbers in notices delivered,
      and as a convenience, to Holders; provided that any such notice may state that
      no representation is made as to the correctness of such numbers either as
      printed on the Notes or as contained in any notice of a redemption, repurchase
      or conversion and that reliance may be placed only on the other identification
      numbers printed on the Notes, and any such redemption, repurchase or conversion
      shall not be affected by any defect in or omission of such numbers. The Company
      will promptly notify the Trustee of any change in the “CUSIP”
numbers.

     

    ARTICLE
      3

    INTEREST

     

    Section
      3.01 Interest
      Rate.

     

    (a) Interest
      on the Notes shall be payable quarterly in arrears on each Interest Payment
      Date
      to Holders of record on the Record Date immediately preceding such Interest
      Payment Date. Interest on the Notes shall accrue at a rate (the “Interest
      Rate”)
      equal
      to LIBOR minus one and one-quarter percentage point (1.25%) per annum;
provided,
      however,
      that
      the Interest Rate shall at no time be less than four percent (4%) per annum
      nor
      greater than five and one half percent (5.5%) per annum. Interest will be
      computed on the basis of a 360-day year comprised of twelve 30-day months.
      The
      applicable Interest Rate in respect of the Notes shall be determined for each
      quarterly interest period on the last Trading Day of the immediately preceding
      quarterly period; provided
      that
      the
      initial Interest Rate shall be determined on April 4, 2007. Interest on the
      Notes shall accrue from the most recent date to which interest has been paid,
      or
      if no interest has been paid, from April 5, 2007 until the principal amount
      of
      the Notes is paid or duly made available for payment.

     

    (b) If
      prior
      to any Interest Payment Date, Additional Interest has accrued under the
      Registration Rights Agreement and not theretofore been paid in full, any such
      Additional Interest shall be due and payable on such Interest Payment Date,
      and
      shall be included in interest payable on such Interest Payment Date and shall
      be
      paid in the manner provided for herein for the payment of Interest
      Payments.

     

    (c) Interest
      on any Note that is payable, and is punctually paid or duly provided for, on
      any
      Interest Payment Date shall be paid to the Person in whose name that Note is
      registered at the close of business on the Record Date for such interest at
      the
      office or agency of the Company maintained for such purpose. Each installment
      of
      interest on any Note shall be made by check mailed to the address of
      the

     


    
      
        
        

      

      
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    Holder
      specified in the register of Notes; provided,
      however,
      that,
      in respect of any Holder with an aggregate principal amount of Notes in excess
      of $2,000,000, at the request of such Holder in writing to the Company, interest
      on such Holder’s Notes shall be paid by wire transfer in immediately available
      funds in accordance with the written wire transfer instruction supplied by
      such
      Holder from time to time to the Trustee and Paying Agent (if different from
      the
      Trustee) at least ten (10) days prior to the applicable Interest Payment Date.
      In the case of a permanent Global Note, interest payable on any Interest Payment
      Date will be paid to the Depositary, in respect of that portion of such
      permanent Global Note held for its account by Cede & Co. for the purpose of
      permitting such party to credit the interest received by it in respect of such
      permanent Global Note to the accounts of the beneficial owners
      thereof.

     

    ARTICLE
      4

    COVENANTS

     

    Section
      4.01 Payment
      of Notes.

     

    The
      Company shall pay or cause to be paid the principal of, premium, if any,
      interest and Additional Interest, if any, on, the Notes on the dates and in
      the
      manner provided in the Notes. Principal, premium, if any, and interest and
      Additional Interest, if any, will be considered paid on the date due if the
      Paying Agent, if other than the Company or a Subsidiary thereof, holds as of
      10:00 a.m., Eastern Time on the due date money deposited by the Company in
      immediately available funds and designated for and sufficient to pay all
      principal, premium, if any, interest and Additional Interest, if any, then
      due.
      The Company shall pay all Additional Interest, if any, in the same manner on
      the
      dates and in the amounts set forth in the Registration Rights Agreement.


     

    The
      Company shall pay interest (including post-petition interest in any proceeding
      under any Bankruptcy Law) on overdue principal at the rate equal to 1% per
      annum
      in excess of the then applicable interest rate on the Notes to the extent
      lawful; it shall pay interest (including post-petition interest in any
      proceeding under any Bankruptcy Law) on overdue installments of interest and
      Additional Interest (without regard to any applicable grace period) at the
      same
      rate to the extent lawful. 

     

    Section
      4.02 Maintenance
      of Office or Agency. 

     

    The
      Company shall maintain an office or agency (which may be an office of the
      Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes
      may be surrendered for registration of transfer or for exchange and where
      notices and demands to or upon the Company in respect of the Notes and this
      Indenture may be served. The Company shall give prompt written notice to the
      Trustee of the location, and any change in the location, of such office or
      agency. If at any time the Company fails to maintain any such required office
      or
      agency or fails to furnish the Trustee with the address thereof, such
      presentations, surrenders, notices and demands may be made or served at the
      Corporate Trust Office of the Trustee.

     

    The
      Company may also from time to time designate one or more other offices or
      agencies where the Notes may be presented or surrendered for any or all such
      purposes and may from time to time rescind such designations; provided,
      however,
      that no
      such designation or rescission shall in any manner relieve the Company of its
      obligation to maintain an office or agency for such purposes. The Company shall
      give prompt written notice to the Trustee of any such designation or rescission
      and of any change in the location of any such other office or
      agency.

     


    
      
        
        

      

      
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    The
      Company hereby designates the Corporate Trust Office of the Trustee as one
      such
      office or agency of the Company in accordance with Section 2.03 hereof.


     

    Section
      4.03 Reports. 

     

    Whether
      or not required by the rules and regulations of the SEC, so long as any Notes
      are outstanding, the Company shall furnish to the Holders of Notes or cause
      the
      Trustee to furnish to the Holders of Notes, within the time periods specified
      in
      the SEC’s rules and regulations:

     

    (1)
      all
      quarterly and annual reports that would be required to be filed with the SEC
      on
      Forms 10-Q and 10-K if the Company were required to file such reports;
      and

     

    (2)
      all
      current reports that would be required to be filed with the SEC on Form 8-K
      if
      the Company were required to file such reports.

     

    All
      such
      reports shall be prepared in all material respects in accordance with all of
      the
      rules and regulations applicable to such reports. Each annual report on Form
      10-K shall include a report on the Company’s consolidated financial statements
      by the Company’s certified independent accountants. In addition, the Company
      shall file a copy of each of the reports referred to in clauses (1) and (2)
      above with the SEC for public availability within the time periods specified
      in
      the rules and regulations applicable to such reports (unless the SEC will not
      accept such a filing) and, if the SEC will not accept such a filing, shall
      post
      the reports on its website within those time periods.

     

    If,
      at
      any time, the Company is no longer subject to the periodic reporting
      requirements of the Exchange Act for any reason, the Company shall nevertheless
      continue filing the reports specified in the preceding paragraphs of this
      Section 4.03 with the SEC within the time periods specified above unless the
      SEC
      will not accept such a filing. The Company shall not take any action for the
      purpose of causing the SEC not to accept any such filings. If, notwithstanding
      the foregoing, the SEC will not accept the Company’s filings for any reason, the
      Company shall post the reports referred to in the preceding paragraphs on its
      website within the time periods that would apply if the Company were required
      to
      file those reports with the SEC.

     

    In
      addition, the Company agrees that, for so long as any Notes remain outstanding,
      if at any time it is not required to file with the SEC the reports required
      by
      the preceding paragraphs, it shall furnish to the Holders of Notes and to
      securities analysts and prospective investors, upon their request, the
      information required to be delivered pursuant to Rule 144A(d)(4) under the
      Securities Act.

     

    In
      addition, the Company agrees that, for so long as any Notes remain outstanding,
      if at any time it is not required to file with the SEC the reports required
      by
      the preceding paragraphs, it shall furnish to the Holders of Notes and to
      securities analysts and prospective investors, upon their request, the
      information required to be delivered pursuant to Rule 144A(d)(4) under the
      Securities Act.

     

    Delivery
      of such reports, information and documents to the Trustee is for informational
      purposes only and the Trustee’s receipt of such shall not constitute
      constructive notice of any information contained therein or determinable from
      information contained therein, including the Company’s compliance with any of
      its covenants hereunder (as to which the Trustee is entitled to rely exclusively
      on Officers’ Certificates).

     

    So
      long
      as is required for offers and sales of the Notes to qualify for an exemption
      under Rule 144A under the Securities Act, the Corporation shall, upon request,
      provide the information required by Rule 144A(d)(4) to each Holder of Notes
      and
      to each beneficial owner and prospective purchaser of

     


    
      
        
        

      

      
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    Notes
      identified by each Holder of Notes, unless such information is furnished to
      the
      Commission pursuant to Section 13 or 15(d) of the Exchange Act. For purposes
      of
      this Section 4.03, the Company will be deemed to have furnished or delivered
      reports to the Trustee and the Noteholders if (i) such reports are filed with
      the Commission via the EDGAR filing system, (ii) such reports are currently
      available, and (iii) the Corporation electronically delivers to the Trustee
      a
      link to the EDGAR filing each time the Company files such a report.


     

    Section
      4.04 Compliance
      Certificate. 

     

    (a) The
      Company and each Guarantor (to the extent that such Guarantor is so required
      under the TIA) shall deliver to the Trustee, within 90 days after the end of
      each fiscal year, an Officers’ Certificate stating that a review of the
      activities of the Company and its Subsidiaries during the preceding fiscal
      year
      has been made under the supervision of the signing Officers with a view to
      determining whether the Company has kept, observed, performed and fulfilled
      its
      obligations under this Indenture, and further stating, as to each such Officer
      signing such certificate, that to the best of his or her knowledge the Company
      has kept, observed, performed and fulfilled each and every covenant contained
      in
      this Indenture and is not in default in the performance or observance of any
      of
      the terms, provisions and conditions of this Indenture (or, if a Default or
      Event of Default has occurred, describing all such Defaults or Events of Default
      of which he or she may have knowledge and what action the Company is taking
      or
      proposes to take with respect thereto) and that to the best of his or her
      knowledge no event has occurred and remains in existence by reason of which
      payments on account of the principal of or interest, if any, on the Notes is
      prohibited or if such event has occurred, a description of the event and what
      action the Company is taking or proposes to take with respect
      thereto.

     

    (b) So
      long
      as not contrary to the then current recommendations of the American Institute
      of
      Certified Public Accountants, the year-end financial statements delivered
      pursuant to Section 4.03 above shall be accompanied by a written statement
      of
      the Company’s independent public accountants (who shall be a firm of established
      national reputation) that in making the examination necessary for certification
      of such financial statements, nothing has come to their attention that would
      lead them to believe that the Company has violated any provisions of Article
      4
      or Article 5 hereof or, if any such violation has occurred, specifying the
      nature and period of existence thereof, it being understood that such
      accountants shall not be liable directly or indirectly to any Person for any
      failure to obtain knowledge of any such violation.

     

    (c) So
      long
      as any of the Notes are outstanding, the Company shall comply with the notice
      delivery requirements of Section 314(b) of the TIA.

     

    (d) So
      long
      as any of the Notes are outstanding, the Company shall deliver to the Trustee,
      forthwith upon any Officer becoming aware of any Default or Event of Default,
      an
      Officers’ Certificate specifying such Default or Event of Default and what
      action the Company is taking or proposes to take with respect thereto.


     

    Section
      4.05 Taxes. 

     

    The
      Company shall pay, and shall cause each of its Subsidiaries to pay, prior to
      delinquency, all material taxes, assessments, and governmental levies except
      such as are contested in good faith and by appropriate proceedings or where
      the
      failure to effect such payment is not adverse in any material respect to the
      Holders of the Notes. 

     


    
      
        
        

      

      
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    Section
      4.06 Stay,
      Extension and Usury Laws.

     

    The
      Company and each of the Guarantors covenants (to the extent that it may lawfully
      do so) that it shall not at any time insist upon, plead, or in any manner
      whatsoever claim or take the benefit or advantage of, any stay, extension or
      usury law wherever enacted, now or at any time hereafter in force, that may
      affect the covenants or the performance of this Indenture; and the Company
      and
      each of the Guarantors (to the extent that it may lawfully do so) hereby
      expressly waives all benefit or advantage of any such law, and covenants that
      it
      shall not, by resort to any such law, hinder, delay or impede the execution
      of
      any power herein granted to the Trustee, but shall suffer and permit the
      execution of every such power as though no such law has been enacted.


     

    Section
      4.07 Dividends
      Paid on Depositary Units. 

     

    In
      case
      the Company shall declare a cash dividend or similar cash distribution in
      respect of any calendar quarter (a “Triggering
      Distribution”)
      in
      respect of its Depositary Units in an amount in excess of $0.10 per Depositary
      Unit (as adjusted for splits, reverse splits and/or stock dividends effected
      after the Issue Date
      -
      any such adjustment to be determined by the Company in good faith, absent
      manifest error)
      (the
“Triggering
      Distribution Threshold Amount”),
      it
      shall at the same time as it makes such distribution to holders of the
      Depositary Units distribute to each Holder in respect of each $1,000 principal
      amount of the Notes held by such Holder on the applicable record date for such
      Triggering Distribution that amount obtained by multiplying (a) the amount
      of
      the Triggering Distribution per outstanding Depositary Unit as of such
      applicable record date in excess of the Triggering Distribution Threshold Amount
      by (b) the Conversion Rate in effect on the Business Day immediately prior
      to
      the record date for such distribution in respect of the Depositary Units. It
      is
      expressly understood that a stock buyback, repurchase or similar transaction
      or
      program shall in no event be considered a Triggering Distribution for purposes
      of this Section 4.07.

     

    Section
      4.08 Transactions
      with Affiliates. 

     

    (a) AREP
      shall not, and shall not permit any of its Subsidiaries (including any
      Guarantor) to, make any payment to, or sell, lease, transfer or otherwise
      dispose of any of its properties or assets to, or purchase any property or
      assets from, or enter into or make or amend any transaction, contract,
      agreement, understanding, loan, advance or guarantee with, any Affiliate of
      AREP
      (each, an “Affiliate Transaction”), unless:

     

    (1)
       the
      Affiliate Transaction is on terms that are not materially less favorable to
      AREP
      or the relevant Subsidiary (including any Guarantor) than those that would
      have
      been obtained in a comparable transaction by AREP or such Subsidiary (including
      any Guarantor) with an unrelated Person as determined in good faith by the
      Board
      of Directors of AREP; and

     

    (2)
       AREP
      delivers to the Trustee:

     

    (A) with
      respect to any Affiliate Transaction or series of related Affiliate Transactions
      involving aggregate consideration in excess of $2.0 million, a resolution of
      the
      Board of Directors of AREP set forth in an Officers’ Certificate certifying that
      such Affiliate Transaction complies with this Section 4.08 and that such
      Affiliate Transaction has been approved by a majority of the disinterested
      members of the Board of Directors of AREP; and

     

    (B) with
      respect to any Affiliate Transaction or series of related Affiliate Transactions
      involving aggregate consideration in excess of $10.0 million, an opinion
      as

     


    
      
        
        

      

      
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    to
      the
      fairness to AREP or such Subsidiary (including any Guarantor) of such Affiliate
      Transaction from a financial point of view issued by an accounting, appraisal
      or
      investment banking firm of recognized standing.

     

    (b) The
      following items shall not be deemed to be Affiliate Transactions and, therefore,
      shall not be subject to the provisions of Section 4.08(a):

     

    (1)
       any
      employment agreement, employee benefit plan, officer or director indemnification
      agreement or any similar arrangement entered into by AREP or any of its
      Subsidiaries (including any Guarantor) in the ordinary course of business and
      payments pursuant thereto including payments or reimbursement of payments by
      API
      with respect to any such agreement, plan or arrangement entered into by API
      with
      respect to or for the benefit of officers or directors of API (other than any
      such agreements, plans or arrangements entered into by AREP or any of its
      Subsidiaries (including AREH) with Carl Icahn (other than employee benefit
      plans
      and officer or director indemnification agreements generally applicable to
      officers and directors of API, AREP or its Subsidiaries (including
      AREH)));

     

    (2)
       transactions
      between or among AREP, any Guarantor and/or their respective Subsidiaries
      (except any Subsidiaries of which Carl Icahn or Affiliates of Carl Icahn (other
      then AREP, AREH or their Subsidiaries) own more than 10% of the Voting
      Stock);

     

    (3)
       payment
      (or reimbursement of payments by API) of directors’ fees to Persons who are not
      otherwise Affiliates of AREP;

     

    (4)
       any
      issuance of Equity Interests (other than Disqualified Stock) and Preferred
      Unit
      Distributions of AREP to Affiliates of AREP;

     

    (5)
       Restricted
      Payments as defined in the 2005 Indenture that do not violate Section 4.07
      thereof (and after the 2005 Indenture shall have been defeased, which would
      not
      have violated the 2005 Indenture if made on the day immediately preceding such
      defeasance);

     

    (6)
       transactions
      between AREP and/or any of its Subsidiaries (including any Guarantor), on the
      one hand, and other Affiliates, on the other hand, for the provision of goods
      or
      services in the ordinary course of business by such other Affiliates;
provided
      that
      such other Affiliate is in the business of providing such goods or services
      in
      the ordinary course of business to unaffiliated third parties and the terms
      and
      pricing for such goods and services overall are not less favorable to AREP
      and/or its Subsidiaries (including AREH) than the terms and pricing upon which
      such goods and services are provided to unaffiliated third parties;

     

    (7)
       the
      provision or receipt of accounting, financial, management, information
      technology and other ancillary services to or from Affiliates, provided
      that
      AREP or its Subsidiaries (including any Guarantor) in the case of the provision
      of such services, are paid a fee not less than its out of pocket costs and
      allocated overhead (including a portion of salaries and benefits) and in the
      case of the receipt of such services, paid a fee not more than such Person’s
      out-of-pocket costs and allocated overhead (including a portion of salaries
      and
      benefits), in each case, as determined by AREP in its reasonable
      judgment;

     

    (8)
       the
      license of a portion of office space pursuant to (x) a license agreement entered
      into in July 2005, between AREP and an Affiliate of API, (y) a license
      arrangement which commenced in October 2006 between an Affiliate of the
      Principal and AREP, and (z) any renewal of either thereof ;

     


    
      
        
        

      

      
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    (9)
       the
      payment to API and reimbursements of payments made by API of expenses relating
      to AREP’s, AREH’s or any Guarantors’ status as a public company;

     

    (10)
       payments
      by AREH, AREP or any Subsidiary to API in connection with services provided
      to
      AREH, AREP or any Subsidiary in accordance with the AREP Partnership Agreement;
      and

     

    (11)
       Any
      direct or indirect acquisition of capital stock or assets of Lear Corporation,
      American Railcar, Inc. or Philips Services Corporation, whether pursuant to
      a
      stock purchase, an asset purchase, a merger or otherwise.

     

    Section
      4.09 Corporate
      Existence. 

     

    Subject
      to Article 5 hereof, the Company shall do or cause to be done all things
      necessary to preserve and keep in full force and effect:

     

    (1)
      its
      partnership or corporate or limited liability company existence, in accordance
      with the respective organizational documents (as the same may be amended from
      time to time) of the Company; and 

     

    (2)
      the
      rights (charter and statutory), licenses and franchises of the
      Company.

     

    Section
      4.10 Compliance
      with Law

     

    AREP
      shall, and shall cause its Subsidiaries (including any Guarantor) to, comply
      in
      all material respects with all applicable laws, rules and
      regulations.

     

    Section
      4.11 No
      Investment Company

     

    Neither
      AREP nor any Guarantor shall register as an “investment company” as such term is
      defined in the Investment Company Act of 1940, as amended.

     

    ARTICLE
      5

    SUCCESSORS

     

    Section
      5.01 Merger,
      Consolidation, or Sale of Assets.

     

    (a) AREP
      will
      not: (x) consolidate or merge with or into another Person (whether or not AREP,
      is the surviving entity) or (y) sell, assign, transfer, convey or otherwise
      dispose of all or substantially all of the properties or assets of AREP in
      one
      or more related transactions, to another Person; unless:

     

    (1)
       either:

     

    (A) AREP
      is
      the surviving entity, or

     

    (B) the
      Person formed by or surviving any such consolidation or merger (if other than
      AREP) or to which such sale, assignment, transfer, conveyance or other
      disposition has been made is a corporation, limited liability company or limited
      partnership entity

     


    
      
        
        

      

      
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    organized
      or existing under the laws of the United States, any state of the United States
      or the District of Columbia;

     

    (2)
       the
      Person formed by or surviving any such consolidation or merger (if other than
      AREP) or the Person to which such sale, assignment, transfer, conveyance or
      other disposition has been made assumes all the obligations of AREP under the
      Notes, this Indenture and the Registration Rights Agreement and upon such
      assumption such Person will become the successor to, and be substituted for,
      AREP hereunder and thereunder and all references to AREP in each thereof shall
      then become references to such Person and such Person shall thereafter be able
      to exercise every right and power of AREP hereunder and thereunder;

     

    (3)
       immediately
      after such transaction no Default or Event of Default exists; and

     

    (4)
       AREP
      has
      delivered to the Trustee an Officers’ Certificate and Opinion of Counsel, which
      may be an opinion of in-house counsel of AREP or an Affiliate, each stating
      that
      such transaction complies with the terms of this Indenture.

     

    Clauses
      (1) or (2) above will not apply to, or be required to be complied with in
      connection with, any merger or consolidation or the sale, assignment, transfer,
      conveyance or other disposition of all or substantially all of AREP’s properties
      or assets to:

     

    (1)
       an
      Affiliate that has no material assets or liabilities where the primary purpose
      of such transaction is to change AREP into a corporation or other form of
      business entity or to change the jurisdiction of formation of AREP and such
      transaction does not cause the realization of any material federal or state
      tax
      liability that will be paid by AREP or any of its Subsidiaries (including AREH).
      For purposes of this paragraph (1), the term material refers to any assets,
      liabilities or tax liabilities that are greater than 5.0% of the Tangible Net
      Worth of AREP and its Subsidiaries (including AREH) on a consolidated basis;
      or

     

    (2)
       any
      Person; provided
      that
      AREP receives consideration in Cash Equivalents and marketable securities with
      an aggregate Fair Market Value determined at the time of the execution of such
      relevant agreement of at least $1.0 billion for such merger or consolidation
      or
      the sale, assignment, transfer, conveyance or other disposition of all or
      substantially all of AREP’s properties or assets. In any transaction referred to
      in this clause (2), and subject to the terms and conditions thereof, the Trustee
      shall, without the need of any action by the Holders, (x) confirm that such
      other Person shall not be liable for and shall release such other Person from
      any obligation of AREP’s under this Indenture and the Notes and (y) release any
      Guarantor from all obligations under its Note Guarantee if such Guarantor was
      directly or indirectly sold, assigned, transferred, conveyed or otherwise
      disposed of to such Person in such transaction.

     

    In
      addition, AREP may not lease all or substantially all of its properties or
      assets, in one or more related transactions, to any other Person. In the case
      of
      a lease of all or substantially all of the assets of AREP, AREP will not be
      released from its obligations under the Notes or this Indenture, as
      applicable.

     

    (b) AREH
      will
      not: (x) consolidate or merge with or into another Person (whether or not AREH,
      is the surviving entity) or (y) sell, assign, transfer, convey or otherwise
      dispose of all or substantially all of the properties or assets of AREH in
      one
      or more related transactions, to another Person; unless:

     


    
      
        
        

      

      
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    (1)
       either:
      (i) AREH is the surviving entity, or (ii) the Person formed by or surviving
      any
      such consolidation or merger (if other than AREH) or to which such sale,
      assignment, transfer, conveyance or other disposition has been made is a
      corporation, limited liability company or limited partnership entity organized
      or existing under the laws of the United States, any state of the United States
      or the District of Columbia;

     

    (2)
       the
      Person formed by or surviving any such consolidation or merger (if other than
      AREH) or the Person to which such sale, assignment, transfer, conveyance or
      other disposition has been made assumes all the obligations of AREH under the
      Note Guarantee (and becomes a Guarantor), the Notes, this Indenture and the
      Registration Rights Agreement, and upon such assumption such Person will become
      the successor to, and be substituted for, AREH hereunder and thereunder, and
      all
      references to AREH in each thereof shall than become references to such Person
      and such Person shall thereafter be able to exercise every right and power
      of
      AREH hereunder and thereunder;

     

    (3)
       immediately
      after such transaction no Default or Event of Default exists; and

     

    (4)
       AREH
      has
      delivered to the Trustee an Officers’ Certificate and Opinion of Counsel which
      may be an opinion of in-house counsel of AREP or an Affiliate, each stating
      that
      such transaction complies with the terms of this Indenture.

     

    Clauses
      (1) or (2) above will not apply to, or be required to be complied with in
      connection with, any merger or consolidation or the sale, assignment, transfer,
      conveyance or other disposition of all or substantially all of AREH’s properties
      or assets to:

     

    (1)
       an
      Affiliate that has no material assets or liabilities where the primary purpose
      of such transaction is to change AREH into a corporation or other form of
      business entity or to change the jurisdiction of formation of AREH and such
      transaction does not cause the realization of any material federal or state
      tax
      liability that will be paid by AREP or any of its Subsidiaries (including AREH).
      For purposes of this paragraph (1), the term material refers to any assets,
      liabilities or tax liabilities that are greater than 5.0% of the Tangible Net
      Worth of AREP and its Subsidiaries (including AREH) on a consolidated
      basis;

     

    (2)
       any
      Person; provided
      that
      AREP receives consideration in Cash Equivalents and marketable securities with
      an aggregate Fair Market Value determined at the time of the execution of such
      relevant agreement of at least $1.0 billion for such merger or consolidation
      or
      the sale, assignment, transfer, conveyance or other disposition of all or
      substantially all of AREH’s properties or assets; or

     

    (3)
       any
      Person; provided
      that
      AREH receives consideration in Cash Equivalents and marketable securities with
      an aggregate Fair Market Value determined at the time of the execution of such
      relevant agreement of at least $1.0 billion for such merger or consolidation
      or
      the sale, assignment, transfer, conveyance or other disposition of all or
      substantially all of AREH’s properties or assets and AREH remains a Subsidiary
      of AREP.

     

    In
      any
      transaction referred to in clause (2) or (3) above, and subject to the terms
      and
      conditions thereof, the Trustee shall, without the need of any action by the
      Holders, (x) confirm that such other Person shall not be liable for and shall
      release such other Person from any obligation of AREP’s or AREH’s under this
      Indenture, the Notes and the Note Guarantees, and (y) release any Guarantor
      from
      all

     


    
      
        
        

      

      
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    obligations
      under its Note Guarantee if such Guarantor was directly or indirectly sold,
      assigned, transferred, conveyed or otherwise disposed of to such Person in
      such
      transaction.

     

    (c) This
      Section 5.01 will not apply to:

     

    (1)
       any
      consolidation or merger, or any sale, assignment, transfer, conveyance, lease
      or
      other disposition of assets between or among AREP, AREH or any one or more
      Guarantors; or

     

    (2)
       any
      sale,
      assignment, transfer, conveyance or other disposition of Cash Equivalents,
      including, without limitation, any investment or capital contribution of Cash
      Equivalents, or any purchase of property and assets, including, without
      limitation, securities, debt obligations or Capital Stock, with Cash
      Equivalents.

     

    Section
      5.02 Relief
      from Obligation.

     

    Except
      as
      provided in the Indenture, neither AREP nor AREH shall be relieved from the
      obligation to pay the principal of and interest on the Notes. 

     

    ARTICLE
      6

    DEFAULTS
      AND REMEDIES

     

    Section
      6.01 Events
      of Default.

     

    (a)
      Each
      of the following is an “Event
      of Default”:

     

    (1)
       the
      Company defaults for 30 days in the payment when due of interest on, or
      Additional Interest with respect to, the Notes or under any Note
      Guarantee;

     

    (2)
       the
      Company defaults in the payment when due and payable (at maturity, upon
      repurchase or otherwise) of the principal of, or premium, if any (including
      any
      Make-Whole Premium), on the Notes or under any Note Guarantee;

     

    (3)
       failure
      by the Company to comply with the provisions of Article 13 hereof;

     

    (4)
       the
      Company or any Guarantor fails to observe or perform any other covenant,
      representation, warranty or other agreement in this Indenture or the Notes
      or
      the Note Guarantee for 60 days after notice to the Company by the Trustee or
      the
      Holders of at least 25% in aggregate principal amount of the outstanding
      Notes voting
      as
      a single class;

     

    (5)
       any
      default under any mortgage, indenture or instrument (other than the Indebtedness
      covered by clause (6) below) under which there is issued or by which there
      is
      secured or evidenced any Indebtedness for money borrowed by the Company or
      any
      Guarantor or default on any Guarantee by the Company or any Guarantor of
      Indebtedness, whether such Indebtedness or Guarantee now exists or is created
      after the Issuance Date, which default: 

     

    (A) is
      caused
      by a failure to pay when due at final maturity (giving effect to any grace
      period or waiver related thereto) the principal of such Indebtedness (a
“Payment
      Default”);
      or


     


    
      
        
        

      

      
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    (B) results
      in the acceleration of such Indebtedness prior to its express maturity and,
      in
      each case, the principal amount of any such Indebtedness as to which AREP or
      any
      Guarantor is obligated to pay, together with the principal amount of any other
      such Indebtedness under which a Payment Default then exists or with respect
      to
      which the maturity thereof has been so accelerated or which has not been paid
      at
      maturity as to which AREP or any Guarantor is obligated to pay, aggregates
      $10.0
      million or more; 

     

    (6)
       any
      default under any of (i) the 8 1/8% Senior Notes, (ii) the 7 1/8% Senior Notes,
      (iii) the 2004 Indenture, (iv) the 2005 Indenture, (v) any other unsecured
      Indebtedness as to which AREP or any Guarantor is obligated to pay, aggregates
      $10.0 million or more or (vi) any documentation governing the terms of any
      such
      Indebtedness (collectively, the “Clause
      (6) Indetbedness”),
      in
      any such case: (A) which default results in the acceleration (which acceleration
      has not been rescinded or otherwise withdrawn) of such Clause (6) Indebtedness
      prior to its express maturity or (B) if such default is waived by the applicable
      required holders and/or lenders as required by the documentation governing
      the
      terms of such Clause (6) Indebtedness (in respect of which waiver negotiations
      Holders shall have no rights), any consideration paid in respect of any such
      waiver to such holders and/or lenders, as applicable shall not have been
      simultaneously paid proportionately to the Holders (i.e.
      if $x is
      paid per $1000 of principal amount of note or outstanding amount of such Clause
      (6) Indebtedness in connection with a waiver of a default thereunder, the
      Holders will each receive $x per $1000 outstanding principal amount of the
      Notes
      in respect of such waiver);

     

    (7)
       the
      Company’s (i) failure to cure a Conversion Failure by delivery of the required
      number of Depositary Units within ten (10) Business Days after the applicable
      Conversion Date or Forced Conversion Date or (ii) notice, written or oral,
      to
      any Holder, including by way of public announcement or through any of its
      agents, at any time, of its intention not to comply with a request for
      conversion of any Notes into Depositary Units that are tendered in accordance
      with the provisions of this Indenture;

     

    (8)
       failure
      by the Company or any Guarantor to pay final judgments aggregating in excess
      of
      $10.0 million, which final judgments remain unpaid, undischarged or unstayed
      for
      a period of more than 60 days after such judgment becomes a final
      judgment;

     

    (9)
       except
      as
      permitted by this Indenture, any Note Guarantee shall be held in any judicial
      proceeding to be unenforceable or invalid or shall cease for any reason to
      be in
      full force and effect, or AREH or any other Guarantor, or any Person acting
      on
      behalf of any Guarantor, shall deny or disaffirm its obligations under its
      Note
      Guarantee;

     

    (10)
       the
      Company or any Subsidiary of the Company that is a Significant Subsidiary or
      any
      group of Subsidiaries of the Company that, taken together, would constitute
      a
      Significant Subsidiary pursuant to or within the meaning of Bankruptcy
      Law:

     

    (A) commences
      a voluntary case,

     

    (B) consents
      to the entry of an order for relief against it in an involuntary
      case,

     

    (C) consents
      to the appointment of a custodian of it or for all or substantially all of
      its
      property,

     

    (D) makes
      a
      general assignment for the benefit of its creditors, or

     


    
      
        
        

      

      
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    (E) generally
      is not paying its debts as they become due; or

     

    (11)
       a
      court
      of competent jurisdiction enters an order or decree under any Bankruptcy Law
      that:

     

    (A) is
      for
      relief against the Company or any Subsidiary of the Company that is a
      Significant Subsidiary or any group of Subsidiaries of the Company that, taken
      together, would constitute a Significant Subsidiary in an involuntary
      case;

     

    (B) appoints
      a custodian of the Company or any of its Subsidiaries that is a Significant
      Subsidiary or any group of Subsidiaries of the Company that, taken together,
      would constitute a Significant Subsidiary or for all or substantially all of
      the
      property of the Company or any of its Subsidiaries that is a Significant
      Subsidiary or any group of Subsidiaries of the Company that, taken together,
      would constitute a Significant Subsidiary; or

     

    (C) orders
      the liquidation of the Company or any of its Subsidiaries that is a Significant
      Subsidiary or any group of Subsidiaries of the Company that, taken together,
      would constitute a Significant Subsidiary;

     

    (D) and
      the
      order or decree remains unstayed and in effect for 60 consecutive
      days.

     

    (b)
      Notwithstanding
      the foregoing, for so long as any Clause (6) Indebtedness is outstanding, if
      the
      Company pays any consideration in respect of any waiver to holders and/or
      lenders, as applicable, under any Clause (6) Indebtedness, it shall
      simultaneously pay the same consideration proportionately to the Holders
      (i.e.
      if $x is
      paid per $1000 of principal amount of note or outstanding amount of such Clause
      (6) Indebtedness in connection with a waiver thereunder, the Holders will each
      receive $x per $1000 outstanding principal amount of the Notes in respect of
      such waiver).  Without limiting the foregoing, (i) if an Event of Default
      of the type described in Section 6.01(a)(5) or (8) is waived by the applicable
      required holders as required by the documentation governing the terms of such
      Clause (6) Indebtedness (in respect of which waiver negotiations Holders shall
      have no rights), the same Event of Default will be deemed waived by the Holders,
      or (ii) if compliance with any provision in any such Clause (6) Indebtedness
      is
      waived by the applicable required holders as required by the documentation
      governing the terms of such Clause (6) Indebtedness (in respect of which waiver
      negotiations Holders shall have no rights), any comparable provision of this
      Indenture will be deemed waived by the Holders, in either
      such case provided that the Company shall have complied with the provisions
      of
      the immediately preceding sentence.

     

    Section
      6.02 Acceleration.

     

    In
      the
      case of an Event of Default specified in clause (10) or (11) of Section 6.01(a)
      hereof, with respect to the Company, any Guarantor that is a Significant
      Subsidiary or any group of Subsidiaries of the Company that, taken together,
      would constitute a Significant Subsidiary, all outstanding Notes will become
      due
      and payable immediately without further action or notice. If any other Event
      of
      Default occurs and is continuing, the Trustee or the Holders of at least 25%
      in
      aggregate principal amount of the then outstanding Notes may declare all the
      Notes to be due and payable immediately.

     

    Upon
      any
      such declaration, the Notes shall become due and payable
      immediately.

     


    
      
        
        

      

      
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    The
      Holders of a majority in aggregate principal amount of the then outstanding
      Notes by written notice to the Trustee may, on behalf of all of the Holders,
      rescind an acceleration and its consequences, if the rescission would not
      conflict with any judgment or decree and if all existing Events of Default
      (except nonpayment of principal, interest or premium or Additional Interest,
      if
      any, that has become due solely because of the acceleration) have been cured
      or
      waived.

     

    Notwithstanding
      the foregoing, in the event that the Notes are accelerated pursuant to this
      Section 6.02 as a result of an Event of Default specified in clause (6) of
      Section 6.01(a), or for so long as any Clause (6) Indebtedness is outstanding,
      clause (5) or (8) of Section 6.01(a), such acceleration shall automatically
      be
      rescinded, without further action of the Holders or the Trustee, if (a) either
      (i) the default that triggered such Event of Default is cured or waived or
      (ii)
      the acceleration of any Indebtedness that triggered such Event of Default is
      rescinded or otherwise withdrawn, and (b) any consideration paid to holders
      and/or lenders of Clause (6) Indebtedness in respect of any such waiver or
      rescission referred to in the preceding clause (a) shall have been
      simultaneously paid proportionately to the Holders (i.e.
      if $x is
      paid per $1000 of principal amount of note or outstanding amount of such Clause
      (6) Indebtedness in connection with a waiver of a default thereunder, the
      Holders will each receive $x per $1000 outstanding principal amount of the
      Notes
      in respect of such waiver).

     

    Section
      6.03 Other
      Remedies.

     

    If
      an
      Event of Default occurs and is continuing, the Trustee may pursue any available
      remedy to collect the payment of principal, premium and Additional Interest,
      if
      any, and interest on the Notes or to enforce the performance of any provision
      of
      the Notes or this Indenture.

     

    The
      Trustee may maintain a proceeding even if it does not possess any of the Notes
      or does not produce any of them in the proceeding. A delay or omission by the
      Trustee or any Holder of a Note in exercising any right or remedy accruing
      upon
      an Event of Default shall not impair the right or remedy or constitute a waiver
      of or acquiescence in the Event of Default. All remedies are cumulative to
      the
      extent permitted by law.

     

    Section
      6.04 Waiver
      of Past Defaults.

     

    Holders
      of not less than a majority in aggregate principal amount of the then
      outstanding Notes by notice to the Trustee may on behalf of the Holders of
      all
      of the Notes waive an existing Default or Event of Default and its consequences
      hereunder, except a continuing Default or Event of Default in the payment of
      the
      principal of, premium and Additional Interest, if any, or interest on, the
      Notes
      (including in connection with an offer to purchase); provided,
      however,
      that
      the Holders of a majority in aggregate principal amount of the then outstanding
      Notes may rescind an acceleration and its consequences, including any related
      payment default that resulted from such acceleration. Upon any such waiver,
      such
      Default shall cease to exist, and any Event of Default arising therefrom shall
      be deemed to have been cured for every purpose of this Indenture; but no such
      waiver shall extend to any subsequent or other Default or impair any right
      consequent thereon.

     

    Section
      6.05 Control
      by Majority.

     

    Holders
      of a majority in aggregate principal amount of the then outstanding Notes may
      direct the time, method and place of conducting any proceeding for exercising
      any remedy available to the Trustee or exercising any trust or power conferred
      on it. However, the Trustee may refuse to follow any direction that conflicts
      with law or this Indenture that the Trustee determines may be unduly prejudicial
      to the rights of other Holders of Notes or that may involve the Trustee in
      personal liability.

     


    
      
        
        

      

      
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    Section
      6.06 Limitation
      on Suits.

     

    A
      Holder
      may pursue a remedy with respect to this Indenture or the Notes only
      if:

     

    (1)
       such
      Holder gives to the Trustee written notice that an Event of Default is
      continuing;

     

    (2)
       Holders
      of at least 25% in aggregate principal amount of the then outstanding Notes
      make
      a written request to the Trustee to pursue the remedy;

     

    (3)
       such
      Holder or Holders offer and, if requested, provide to the Trustee security
      or
      indemnity reasonably satisfactory to the Trustee against any loss, liability
      or
      expense;

     

    (4)
       the
      Trustee does not comply with the request within 60 days after receipt of the
      request and the offer of security or indemnity; and

     

    (5)
       during
      such 60-day period, Holders of a majority in aggregate principal amount of
      the
      then outstanding Notes do not give the Trustee a direction inconsistent with
      such request.

     

    A
      Holder
      of a Note may not use this Indenture to prejudice the rights of another Holder
      of a Note or to obtain a preference or priority over another Holder of a
      Note.

     

    Section
      6.07 Rights
      of Holders of Notes to Receive Payment.

     

    Notwithstanding
      any other provision of this Indenture, the right of any Holder of a Note to
      receive payment of principal, premium and Additional Interest, if any, and
      interest on the Note, on or after the respective due dates expressed in the
      Notes (including in connection with an offer to purchase) or any Fundamental
      Change Settlement Date, as applicable, and to convert the Notes in accordance
      with Article 12, or to bring suit for the enforcement of any such payment or
      conversion right on or after such respective dates, shall not be impaired or
      affected without the consent of such Holder.

     

    Section
      6.08 Collection
      Suit by Trustee.

     

    If
      an
      Event of Default specified in Section 6.01(a)(1) or (2) hereof occurs and is
      continuing, the Trustee is authorized to recover judgment in its own name and
      as
      trustee of an express trust against the Company for the whole amount of
      principal of, premium and Additional Interest, if any, and interest remaining
      unpaid on, the Notes and interest on overdue principal and, to the extent
      lawful, interest and such further amount as shall be sufficient to cover the
      costs and expenses of collection, including the reasonable compensation,
      expenses, disbursements and advances of the Trustee, its agents and
      counsel.

     

    Section
      6.09 Trustee
      May File Proofs of Claim.

     

    The
      Trustee is authorized to file such proofs of claim and other papers or documents
      as may be necessary or advisable in order to have the claims of the Trustee
      (including any claim for the reasonable compensation, expenses, disbursements
      and advances of the Trustee, its agents and counsel) and the Holders of the
      Notes allowed in any judicial proceedings relative to the Company (or any other
      obligor upon the Notes), its creditors or its property and shall be entitled
      and
      empowered to collect, receive and distribute any money or other property payable
      or deliverable on any such claims and any custodian in any such judicial
      proceeding is hereby authorized by each Holder to make such payments to the
      Trustee, and in the event that the Trustee shall consent to the making of such
      payments directly to the Holders, to

     


    
      
        
        

      

      
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    pay
      to
      the Trustee any amount due to it for the reasonable compensation, expenses,
      disbursements and advances of the Trustee, its agents and counsel, and any
      other
      amounts due the Trustee under Section 7.07 hereof. To the extent that the
      payment of any such compensation, expenses, disbursements and advances of the
      Trustee, its agents and counsel, and any other amounts due the Trustee under
      Section 7.07 hereof out of the estate in any such proceeding, shall be denied
      for any reason, payment of the same shall be secured by a Lien on, and shall
      be
      paid out of, any and all distributions, dividends, money, securities and other
      properties that the Holders may be entitled to receive in such proceeding
      whether in liquidation or under any plan of reorganization or arrangement or
      otherwise. Nothing herein contained shall be deemed to authorize the Trustee
      to
      authorize or consent to or accept or adopt on behalf of any Holder any plan
      of
      reorganization, arrangement, adjustment or composition affecting the Notes
      or
      the rights of any Holder, or to authorize the Trustee to vote in respect of
      the
      claim of any Holder in any such proceeding.

     

    Section
      6.10 Priorities.

     

    If
      the
      Trustee collects any money pursuant to this Article 6, it shall pay out the
      money in the following order:

     

    First: to
      the
      Trustee, its agents and attorneys for amounts due under Section 7.07 hereof,
      including payment of all compensation, expenses and liabilities incurred, and
      all advances made, by the Trustee and the costs and expenses of
      collection;

     

    Second: to
      Holders of Notes for amounts due and unpaid on the Notes for principal, premium
      and Additional Interest, if any, and interest, ratably, without preference
      or
      priority of any kind, according to the amounts due and payable on the Notes
      for
      principal, premium and Additional Interest, if any and interest, respectively;
      and

     

    Third: to
      the
      Company or to such party as a court of competent jurisdiction shall
      direct.

     

    The
      Trustee may fix a record date and payment date for any payment to Holders of
      Notes pursuant to this Section 6.10.

     

    Section
      6.11 Undertaking
      for Costs.

     

    In
      any
      suit for the enforcement of any right or remedy under this Indenture or in
      any
      suit against the Trustee for any action taken or omitted by it as a Trustee,
      a
      court in its discretion may require the filing by any party litigant in the
      suit
      of an undertaking to pay the costs of the suit, and the court in its discretion
      may assess reasonable costs, including reasonable attorneys’ fees, against any
      party litigant in the suit, having due regard to the merits and good faith
      of
      the claims or defenses made by the party litigant. This Section 6.11 does not
      apply to a suit by the Trustee, a suit by a Holder of a Note pursuant to Section
      6.07 hereof, or a suit by Holders of more than 10% in aggregate principal amount
      of the then outstanding Notes.

     


    
      
        
        

      

      
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    ARTICLE
      7

    TRUSTEE

     

    Section
      7.01 Duties
      of Trustee.

     

    (a) If
      an
      Event of Default has occurred and is continuing of which a Responsible Officer
      of the Trustee has actual knowledge or of which written notice shall have been
      given to the Trustee in accordance with the terms of this Indenture, the Trustee
      will exercise such of the rights and powers vested in it by this Indenture,
      and
      use the same degree of care and skill in its exercise, as a prudent person
      would
      exercise or use under the circumstances in the conduct of such person’s own
      affairs.

     

    (b) Except
      during the continuance of an Event of Default of which a Responsible Officer
      of
      the Trustee has actual knowledge or of which written notice shall have been
      given to the Trustee in accordance with the terms of this
      Indenture:

     

    (1)
       the
      duties of the Trustee will be determined solely by the express provisions of
      this Indenture and the Trustee need perform only those duties that are
      specifically set forth in this Indenture and no others, and no implied covenants
      or obligations shall be read into this Indenture against the Trustee;
      and

     

    (2)
       in
      the
      absence of bad faith on its part, the Trustee may conclusively rely, as to
      the
      truth of the statements and the correctness of the opinions expressed therein,
      upon certificates or opinions furnished to the Trustee and conforming to the
      requirements of this Indenture. The Trustee shall be under no duty to make
      any
      investigation as to any statement contained in any such instance, but may accept
      the same as conclusive evidence of the truth and accuracy of such statement
      or
      the correctness of such opinions. However, the Trustee will examine the
      certificates and opinions to determine whether or not they conform on their
      face
      to the requirements of this Indenture, but shall not verify the contents
      thereof.

     

    (c) The
      Trustee may not be relieved from liabilities for its own negligent action,
      its
      own negligent failure to act, or its own willful misconduct, except
      that:

     

    (1)
       this
      paragraph does not and shall not be construed to limit the effect of paragraph
      (b) of this Section 7.01;

     

    (2)
       the
      Trustee will not be liable for any error of judgment made in good faith by
      a
      Responsible Officer, unless it is proved that the Trustee was negligent in
      ascertaining the pertinent facts; and

     

    (3)
       the
      Trustee will not be liable with respect to any action it takes or omits to
      take
      in good faith in accordance with a direction received by it pursuant to Section
      6.05 hereof.

     

    The
      Trustee shall not be required to examine any of the reports, information or
      documents delivered to it under this Indenture to determine whether there has
      been any breach of the covenants of the Company contained herein, except that
      if
      any breach or default is expressly stated in any such reports, information
      or
      documents, the Trustee shall be deemed to have actual knowledge of such breach
      or default.

     

    (d) Whether
      or not therein expressly so provided, every provision of this Indenture that
      in
      any way relates to the Trustee is subject to paragraphs (a), (b), and (c) of
      this Section 7.01.

     


    
      
        
        

      

      
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    (e) No
      provision of this Indenture will require the Trustee to expend or risk its
      own
      funds or incur any liability. 

     

    (f) The
      Trustee will not be liable for interest on any money received by it except
      as
      the Trustee may agree in writing with the Company. Money held in trust by the
      Trustee need not be segregated from other funds except to the extent required
      by
      law.

     

    Section
      7.02 Rights
      of Trustee.

     

    (a) The
      Trustee may conclusively rely upon any document believed by it to be genuine
      and
      to have been signed or presented by the proper Person. The Trustee need not
      investigate any fact or matter stated in any such document.

     

    (b) Before
      the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel or both. The Trustee will not be liable
      for
      any action it takes or omits to take in good faith in reliance on such Officers’
Certificate or Opinion of Counsel. The Trustee may consult with counsel of
      its
      choice and the written advice of such counsel or any Opinion of Counsel will
      be
      full and complete authorization and protection from liability in respect of
      any
      action taken, suffered or omitted by it hereunder in good faith and in reliance
      thereon.

     

    (c) The
      Trustee may act through its attorneys and agents and will not be responsible
      for
      the misconduct or negligence of any attorney or agent appointed with due
      care.

     

    (d) The
      Trustee will not be liable for any action it takes or omits to take in good
      faith that it believes to be authorized or within the rights or powers conferred
      upon it by this Indenture.

     

    (e) Unless
      otherwise specifically provided in this Indenture, any demand, request,
      direction or notice from the Company or any Guarantor will be sufficient if
      signed by an Officer of the Company or any Guarantor, as
      applicable.

     

    (f) The
      Trustee shall not be bound to make any investigation into the facts or matters
      stated in any resolution, certificate, statement, instrument, opinion, report,
      notice, request, consent, order, approval, bond, debenture, note or other paper
      or document, but the Trustee, in its discretion, may make such further inquiry
      or investigation into such facts or matters as it may see fit, and, if the
      Trustee shall determine to make such further inquiry or investigation, it shall
      be entitled to examine the books, records and premises of the Company,
      personally or by agent or attorney, at the expense of the Company and shall
      incur no liability of any kind by reason of such inquiry or
      investigation.

     

    (g) The
      Trustee will be under no obligation to exercise any of the rights or powers
      vested in it by this Indenture at the request or direction of any of the Holders
      unless such Holders have offered to the Trustee indemnity or security
      satisfactory to it against the losses, liabilities and expenses that might
      be
      incurred by it in compliance with such request or direction.

     

    (h) The
      rights, privileges, protections, immunities and benefits given to the Trustee,
      including its right to be indemnified, are extended to, and shall be enforceable
      by, the Trustee in each of its capacities hereunder and each agent, custodian
      and other Person employed to act hereunder.

     

    (i) The
      Trustee shall not be liable for any action taken or omitted by it in good faith
      at the direction of the Holders of not less than a majority in principal amount
      of the Securities as to the time,

     


    
      
        
        

      

      
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    method
      and place of conducting any proceedings for any remedy available to the Trustee
      or the exercising of any power conferred by this Indenture. 

     

    (j) Any
      action taken, or omitted to be taken, by the Trustee in good faith pursuant
      to
      this Indenture upon the request or authority or consent of any person who,
      at
      the time of making such request or giving such authority or consent, is the
      Holder of any Security shall be conclusive and binding upon future Holders
      of
      Securities and upon Securities executed and delivered in exchange therefor
      or in
      place thereof. 

     

    Section
      7.03 Individual
      Rights of Trustee.

     

    The
      Trustee in its individual or any other capacity may become the owner or pledgee
      of Notes and, subject to TIA §310(b), may otherwise deal with the Company or any
      Affiliate of the Company with the same rights it would have if it were not
      Trustee. Any Agent may do the same with like rights and duties.

     

    Section
      7.04 Trustee’s
      Disclaimer.

     

    The
      Trustee will not be responsible for and makes no representation as to the
      validity or adequacy of this Indenture, the Notes or the Note Guarantee, it
      shall not be accountable for the Company’s use of the proceeds from the Notes or
      any money paid to the Company or upon the Company’s direction under any
      provision of this Indenture, it will not be responsible for the use or
      application of any money received by any Paying Agent other than the Trustee,
      and it will not be responsible for any statement or recital herein or any
      statement in the Notes or any other document in connection with the sale of
      the
      Notes or pursuant to this Indenture other than its certificate of
      authentication.

     

    Section
      7.05 Notice
      of Defaults.

     

    If
      a
      Default or Event of Default occurs and is continuing of which a Responsible
      Officer of the Trustee has actual knowledge, the Trustee will mail to Holders
      of
      Notes a notice of the Default or Event of Default within 90 days after such
      Responsible Officer has actual knowledge of such Default or Event of Default.
      Except in the case of a Default or Event of Default in payment of principal
      of,
      premium or Additional Interest, if any, or interest on, any Note, the Trustee
      may withhold the notice if and so long as a committee of its Responsible
      Officers in good faith determines that withholding the notice is in the
      interests of the Holders of the Notes.

     

    Section
      7.06 Reports
      by Trustee to Holders of the Notes.

     

    (a) Within
      60
      days after each May 15 beginning with the May 15, 2008, and for so long as
      Notes
      remain outstanding, the Trustee will mail to the Holders of the Notes a brief
      report dated as of such reporting date that complies with TIA § 313(a) (but
      if no event described in TIA § 313(a) has occurred within the twelve months
      preceding the reporting date, no report need be transmitted). The Trustee also
      will comply with TIA § 313(b)(2). The Trustee will also transmit by mail
      all reports as required by TIA § 313(c).

     

    (b) A
      copy of
      each report at the time of its mailing to the Holders of Notes will be mailed
      by
      the Trustee to the Company and filed by the Trustee with the SEC and each stock
      exchange on which the Notes are listed in accordance with TIA § 313(d). The
      Company will promptly notify the Trustee when the Notes are listed on any stock
      exchange.

     


    
      
        
        

      

      
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    Section
      7.07 Compensation
      and Indemnity.

     

    (a) The
      Company will pay to the Trustee from time to time reasonable compensation for
      its acceptance of this Indenture and services hereunder. The Trustee’s
      compensation will not be limited by any law on compensation of a trustee of
      an
      express trust. The Company will reimburse the Trustee promptly upon request
      for
      all reasonable disbursements, advances and expenses incurred or made by it
      in
      addition to the compensation for its services. Such expenses will include the
      reasonable compensation, disbursements, costs and expenses of the Trustee’s
      agents, consultants and counsel (including the costs and expenses of collection
      on the Notes and the Note Guarantees and the enforcement and administration
      of
      any right or remedy or observing any of its duties under this
      Indenture).

     

    (b) The
      Company and each Guarantor will indemnify the Trustee and hold the Trustee
      harmless against any and all losses, liabilities or expenses incurred by it
      arising out of or in connection with the acceptance or administration of its
      duties under this Indenture, including the costs and expenses of enforcing
      this
      Indenture against the Company and each Guarantor (including this Section 7.07)
      and defending itself against any claim (whether asserted by the Company, each
      Guarantor, any Holder or any other Person) or liability in connection with
      the
      exercise or performance of any of its powers or duties hereunder, except any
      such loss, liability or expense attributable to its negligence or bad faith.
      The
      Trustee will notify the Company and each Guarantor promptly of any claim for
      which it may seek indemnity. Failure by the Trustee to so notify the Company
      and
      each Guarantor will not relieve the Company or any of the Guarantors of their
      obligations hereunder. The Company or such Guarantor will defend the claim
      and
      the Trustee will cooperate in the defense. The Trustee may have separate counsel
      and the Company will pay the reasonable fees and expenses of such counsel.
      Neither the Company nor any Guarantor need pay for any settlement made without
      its consent, which consent will not be unreasonably withheld.

     

    (c) The
      obligations of the Company and each Guarantor under this Section 7.07 shall
      constitute additional Indebtedness hereunder and will survive the satisfaction
      and discharge of this Indenture.

     

    (d) To
      secure
      the Company’s and each Guarantor’s payment obligations in this Section 7.07, the
      Trustee will have a Lien prior to the Notes on all money or property held or
      collected by the Trustee, except that held in trust to pay principal and
      interest on particular Notes. Such Lien will survive the satisfaction and
      discharge of this Indenture.

     

    (e) The
      Company’s and the Guarantors’ payment obligations pursuant to this Section shall
      survive the satisfaction or discharge of this Indenture, any rejection or
      termination of this Indenture under any bankruptcy law or the resignation or
      removal of the Trustee. Without prejudice to any other rights available to
      the
      Trustee under applicable law, when
      the
      Trustee incurs expenses or renders services after an Event of Default specified
      in Section 6.01(a)(10) or (11) hereof occurs, the expenses and the compensation
      for the services (including the fees and expenses of its agents and counsel)
      are
      intended to constitute expenses of administration under any Bankruptcy
      Law.

     

    (f) The
      Trustee will comply with the provisions of TIA § 313(b)(2) to the extent
      applicable.

     

    Section
      7.08 Replacement
      of Trustee.

     

    (a) A
      resignation or removal of the Trustee and appointment of a successor Trustee
      will become effective only upon the successor Trustee’s acceptance of
      appointment as provided in this Section 7.08.

     


    
      
        
        

      

      
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    (b) The
      Trustee may resign in writing at any time and be discharged from the trust
      hereby created by so notifying the Company. The Holders of a majority in
      aggregate principal amount of the then outstanding Notes may remove the Trustee
      by so notifying the Trustee and the Company in writing. The Company may remove
      the Trustee if:

     

    (1)
       the
      Trustee fails to comply with Section 7.10 hereof;

     

    (2)
       the
      Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered
      with respect to the Trustee under any Bankruptcy Law;

     

    (3)
       a
      custodian or public officer takes charge of the Trustee or its property;
      or

     

    (4)
       the
      Trustee becomes incapable of acting.

     

    (c) If
      the
      Trustee resigns or is removed or if a vacancy exists in the office of Trustee
      for any reason, the Company will promptly appoint a successor Trustee. Within
      one year after the successor Trustee takes office, the Holders of a majority
      in
      aggregate principal amount of the then outstanding Notes may appoint a successor
      Trustee to replace the successor Trustee appointed by the Company.

     

    (d) If
      a
      successor Trustee does not take office within 60 days after the retiring Trustee
      resigns or is removed, the retiring Trustee, the Company, or the Holders of
      at
      least 10% in aggregate principal amount of the then outstanding Notes may
      petition any court of competent jurisdiction, at the expense of the Company
      for
      the appointment of a successor Trustee.

     

    (e) If
      the
      Trustee, after written request by any Holder who has been a Holder for at least
      six months, fails to comply with Section 7.10 hereof, such Holder may petition
      any court of competent jurisdiction for the removal of the Trustee and the
      appointment of a successor Trustee.

     

    (f) A
      successor Trustee will deliver a written acceptance of its appointment to the
      retiring Trustee and to the Company. Thereupon, the resignation or removal
      of
      the retiring Trustee will become effective, and the successor Trustee will
      have
      all the rights, powers and duties of the Trustee under this Indenture. The
      successor Trustee will mail a notice of its succession to Holders. The retiring
      Trustee will promptly transfer all property held by it as Trustee to the
      successor Trustee; provided
      all sums
      owing to the Trustee hereunder have been paid and subject to the Lien provided
      for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant
      to this Section 7.08, the Company’s obligations under Section 7.07 hereof will
      continue for the benefit of the retiring Trustee.

     

    Section
      7.09 Successor
      Trustee by Merger, etc.

     

    If
      the
      Trustee consolidates, merges or converts into, or transfers all or substantially
      all of its corporate trust business to, another corporation, the successor
      corporation without any further act will be the successor Trustee.

     

    Section
      7.10 Eligibility;
      Disqualification.

     

    There
      will at all times be a Trustee hereunder that is a corporation organized and
      doing business under the laws of the United States of America or of any state
      thereof that is authorized under such laws to exercise corporate trustee power,
      that is subject to supervision or examination by federal or state authorities
      and that has a combined capital and surplus of at least $100.0 million as set
      forth in its most recent published annual report of condition.

     


    
      
        
        

      

      
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    This
      Indenture will always have a Trustee who satisfies the requirements of TIA
      § 310(a)(1), (2) and (5). The Trustee is subject to TIA
§ 310(b).

     

    Section
      7.11 Preferential
      Collection of Claims Against Company.

     

    The
      Trustee is subject to TIA § 311(a), excluding any creditor relationship
      listed in TIA § 311(b). A Trustee who has resigned or been removed shall be
      subject to TIA § 311(a) to the extent indicated therein.

     

    ARTICLE
      8

    COVENANT
      DEFEASANCE

     

    Section
      8.01 Company
      May Effect Covenant Defeasance.

     

    The
      Company may at any time, at the option of its Board of Directors evidenced
      by a
      resolution set forth in an Officers’ Certificate, elect to have Section 8.03
      hereof be applied to all outstanding Notes upon compliance with the conditions
      set forth below in this Article 8.

     

    Section
      8.02 Legal
      Defeasance and Discharge.

     

    Legal
      defeasance of the Notes shall only occur upon satisfaction and discharge of
      the
      Notes as set forth in Article 11.

     

    Section
      8.03 Covenant
      Defeasance.

     

    Upon
      the
      Company’s exercise of the option under Section 8.01 hereof applicable to this
      Section 8.03, the Company and each of the Guarantors will, subject to the
      satisfaction of the conditions set forth in Section 8.04 hereof, be released
      from each of their obligations under the covenants contained in Sections 4.08,
      4.10 and 4.11 hereof, Section 5.01(a)(4) and Section 5.01(b)(4) hereof with
      respect to the outstanding Notes on and after the date the conditions set forth
      in Section 8.04 hereof are satisfied (hereinafter, “Covenant
      Defeasance”),
      and
      the Notes will thereafter be deemed not “outstanding” for the purposes of any
      direction, waiver, consent or declaration or act of Holders (and the
      consequences of any thereof) in connection with such covenants, but will
      continue to be deemed “outstanding” for all other purposes hereunder (it being
      understood that such Notes will not be deemed outstanding for accounting
      purposes). For this purpose, Covenant Defeasance means that, with respect to
      the
      outstanding Notes and Note Guarantees, the Company and the Guarantors may omit
      to comply with and will have no liability in respect of any term, condition
      or
      limitation set forth in any such covenant, whether directly or indirectly,
      by
      reason of any reference elsewhere herein to any such covenant or by reason
      of
      any reference in any such covenant to any other provision herein or in any
      other
      document and such omission to comply will not constitute a Default or an Event
      of Default under Section 6.01(a) hereof, but, except as specified above, the
      remainder of this Indenture and such Notes and Note Guarantees will be
      unaffected thereby. In addition, upon the Company’s exercise under Section 8.01
      hereof of the option applicable to this Section 8.03, subject to the
      satisfaction of the conditions set forth in Section 8.04 hereof, Sections
      6.01(a)(3) through 6.01(a)(6) hereof will not constitute Events of
      Default.

     

    Section
      8.04 Conditions
      to Covenant Defeasance.

     

    In
      order
      to exercise Covenant Defeasance under Section 8.03 hereof:

     


    
      
        
        

      

      
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    (1)
       the
      Company must irrevocably deposit with the Trustee, in trust, for the benefit
      of
      the Holders, cash in U.S. dollars, non-callable Government Securities, or a
      combination thereof, in such amounts as will be sufficient, in the opinion
      of a
      nationally recognized investment bank, appraisal firm, or firm of independent
      public accountants, to pay the principal of, premium and Additional Interest,
      if
      any, on the outstanding Notes on the Maturity Date, and interest in an amount
      equal to five and one half percent (5.5%) of the principal amount of the
      outstanding Notes through the Maturity Date, and the Company must specify
      whether the Notes are being defeased to such stated date for
      payment;

     

    (2)
       the
      Company must deliver to the Trustee an Opinion of Counsel confirming that the
      Holders of the outstanding Notes will not recognize income, gain or loss for
      federal income tax purposes as a result of such Covenant Defeasance and will
      be
      subject to federal income tax on the same amounts, substantially in the same
      manner and at the same times as would have been the case if such Covenant
      Defeasance had not occurred;

     

    (3)
       no
      Default or Event of Default shall have occurred and be continuing on the date
      of
      such deposit (other than a Default or Event of Default resulting from the
      borrowing of funds to be applied to such deposit) and the deposit will not
      result in a breach or violation of, or constitute a default under, any other
      instrument to which the Company or any Guarantor is a party or by which the
      Company or any Guarantor is bound;

     

    (4)
       such
      Covenant Defeasance will not result in a breach or violation of, or constitute
      a
      default under, any material agreement or instrument (other than this Indenture)
      to which the Company or any of its Subsidiaries is a party or by which the
      Company or any of its Subsidiaries is bound;

     

    (5)
       the
      Company must deliver to the Trustee an Opinion of Counsel, containing customary
      assumptions and exceptions, to the effect that upon and immediately following
      the deposit, the trust funds will not be subject to the effect of any applicable
      bankruptcy, insolvency, reorganization or similar laws affecting creditors’
rights generally under any applicable law;

     

    (6)
       the
      Company must deliver to the Trustee an Officers’ Certificate stating that the
      deposit was not made by the Company with the intent of preferring the Holders
      of
      Notes over the other creditors of the Company with the intent of defeating,
      hindering, delaying or defrauding any creditors of the Company or others;
      and

     

    (7)
       the
      Company must deliver to the Trustee an Officers’ Certificate and an Opinion of
      Counsel, each stating that all conditions precedent relating to the Covenant
      Defeasance have been complied with.

     

    Section
      8.05 Deposited
      Money and Government Securities to be Held in Trust; Other Miscellaneous
      Provisions.

     

    Subject
      to Section 8.06 hereof, all money and non-callable Government Securities
      (including the proceeds thereof) deposited with the Trustee (or other qualifying
      trustee, collectively for purposes of this Section 8.05, the “Trustee”)
      pursuant to Section 8.04 hereof in respect of the outstanding Notes will be
      held
      in trust and applied by the Trustee, in accordance with the provisions of such
      Notes and this Indenture, to the payment, either directly or through any Paying
      Agent (including the Company acting as Paying Agent) as the Trustee may
      determine, to the Holders of such Notes of all sums due and to become due
      thereon in respect of principal, premium and Additional Interest, if any, and
      interest, but such money need not be segregated from other funds except to
      the
      extent required by law.

     


    
      
        
        

      

      
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    The
      Company will pay and indemnify the Trustee against any tax, fee or other charge
      imposed on or assessed against the cash or non-callable Government Securities
      deposited pursuant to Section 8.04 hereof or the principal and interest received
      in respect thereof other than any such tax, fee or other charge which by law
      is
      for the account of the Holders of the outstanding Notes.

     

    Notwithstanding
      anything in this Article 8 to the contrary, the Trustee will deliver or pay
      to
      the Company from time to time upon the request of the Company any money or
      non-callable Government Securities held by it as provided in Section 8.04 hereof
      which, in the opinion of a nationally recognized firm of independent public
      accountants expressed in a written certification thereof delivered to the
      Trustee (which may be the opinion delivered under Section 8.04(1) hereof),
      are
      in excess of the amount thereof that would then be required to be deposited
      to
      effect an equivalent Covenant Defeasance.

     

    Section
      8.06 Repayment
      to Company.

     

    Any
      money
      deposited with the Trustee or any Paying Agent, or then held by the Company,
      in
      trust for the payment of the principal of, premium or Additional Interest,
      if
      any, or interest on, any Note and remaining unclaimed for two years after such
      principal, premium or Additional Interest, if any, or interest has become due
      and payable shall be paid to the Company on its request or (if then held by
      the
      Company) will be discharged from such trust; and the Holder of such Note will
      thereafter be permitted to look only to the Company for payment thereof, and
      all
      liability of the Trustee or such Paying Agent with respect to such trust money,
      and all liability of the Company as trustee thereof, will thereupon cease;
      provided,
      however,
      that
      the Trustee or such Paying Agent, before being required to make any such
      repayment, may at the expense of the Company cause to be published once, in
      the
New
      York Times
      and
The
      Wall Street Journal
      (national edition), notice that such money remains unclaimed and that, after
      a
      date specified therein, which will not be less than 30 days from the date of
      such notification or publication, any unclaimed balance of such money then
      remaining will be repaid to the Company.

     

    Section
      8.07 Reinstatement.

     

    If
      the
      Trustee or Paying Agent is unable to apply any U.S. dollars or non-callable
      Government Securities in accordance with Section 8.03 hereof by reason of any
      order or judgment of any court or governmental authority enjoining, restraining
      or otherwise prohibiting such application, then the Company’s and the
      Guarantors’ obligations under this Indenture and the Notes and the Note
      Guarantees will be revived and reinstated as though no deposit had occurred
      pursuant to Section 8.03 hereof until such time as the Trustee or Paying Agent
      is permitted to apply all such money in accordance with Section 8.03 hereof,
      as
      the case may be; provided,
      however,
      that,
      if the Company makes any payment of principal of, premium or Additional
      Interest, if any, or interest on, any Note following the reinstatement of its
      obligations, the Company will be subrogated to the rights of the Holders of
      such
      Notes to receive such payment from the money held by the Trustee or Paying
      Agent.

     

    ARTICLE
      9

    AMENDMENT,
      SUPPLEMENT AND WAIVER

     

    Section
      9.01 Without
      Consent of Holders of Notes.

     

    Notwithstanding
      Section 9.02 of this Indenture, the Company, the Guarantors and the Trustee
      may
      amend or supplement this Indenture or the Notes or the Note Guarantees without
      the consent of any Holder of a Note:

     


    
      
        
        

      

      
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    (1)
       to
      cure
      any ambiguity, defect or inconsistency;

     

    (2)
       to
      provide for uncertificated Notes in addition to or in place of certificated
      Notes;

     

    (3)
       to
      provide for the assumption of the Company’s or a Guarantor’s obligations to the
      Holders of the Notes and Note Guarantees by a successor to the Company or such
      Guarantor pursuant to Article 5 or Article 10 hereof;

     

    (4)
       to
      make
      any change that would provide any additional rights or benefits to the Holders
      of the Notes or that does not adversely affect the legal rights hereunder of
      any
      Holder;

     

    (5)
       to
      comply
      with requirements of the SEC in order to effect or maintain the qualification
      of
      this Indenture under the TIA;

     

    (6)
       to
      provide for the issuance of Additional Notes in accordance with the limitations
      set forth in this Indenture as of the date hereof; 

     

    (7)
       to
      decrease the Conversion Price of the Notes; provided,
      however,
      that
      such decrease shall be in accordance with the terms of this Indenture or shall
      not adversely affect the interests of the Holders; 

     

    (8)
       to
      amend,
      modify, revise or supplement this Indenture to conform to any amendments,
      modifications, revisions or supplements made to any Clause (6) Indebtedness
      in
      respect of any provisions therein for which there are substantially identical
      provisions in this Indenture, including without limitation with respect to
      analogous provisions in Articles 8, 10 and 16, only to the extent that any
      such
      amendments, modifications, revisions or supplements are more favorable or
      beneficial to the holders of such notes and the Holders; or

     

    (9)
       to
      allow
      any Guarantor to enter into a supplemental indenture and/or execute a Note
      Guarantee with respect to the Notes.

     

    Upon
      the
      request of the Company accompanied by a resolution of its Board of Directors
      authorizing the execution of any such amended or supplemental indenture, and
      upon receipt by the Trustee of the documents described in Section 7.02 hereof,
      the Trustee will join with the Company and the Guarantors in the execution
      of
      any amended or supplemental indenture authorized or permitted by the terms
      of
      this Indenture and to make any further appropriate agreements and stipulations
      that may be therein contained, but the Trustee will not be obligated to enter
      into such amended or supplemental indenture that affects its own rights, duties
      or immunities under this Indenture or otherwise.

     

    Section
      9.02 With
      Consent of Holders of Notes.

     

    Except
      as
      provided below in this Section 9.02, the Company and the Trustee may amend
      or
      supplement this Indenture (including, without limitation, Article 13 hereof)
      and
      the Notes and the Note Guarantees with the consent of the Holders of at least
      a
      majority in aggregate principal amount of the then outstanding Notes (including,
      without limitation, Additional Notes, if any) voting as a single class
      (including, without limitation, consents obtained in connection with a tender
      offer or exchange offer for, or purchase of, the Notes), and, subject to
      Sections 6.04 and 6.07 hereof, any existing Default or Event of Default (other
      than a Default or Event of Default in the payment of the principal of, premium
      or Additional Interest, if any, or interest on, the Notes, except a payment
      default resulting from an

     


    
      
        
        

      

      
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    acceleration
      that has been rescinded) or compliance with any provision of this Indenture
      or
      the Notes or the Note Guarantees may be waived with the consent of the Holders
      of a majority in aggregate principal amount of the then outstanding Notes
      (including, without limitation, Additional Notes, if any) voting as a single
      class (including, without limitation, consents obtained in connection with
      a
      tender offer or exchange offer for, or purchase of, the Notes). Section
      2.08 hereof shall determine which Notes are considered to be “outstanding” for
      purposes of this Section 9.02.

     

    Upon
      the
      request of the Company accompanied by a resolution of its Board of Directors
      authorizing the execution of any such amended or supplemental indenture, and
      upon the filing with the Trustee of evidence satisfactory to the Trustee of
      the
      consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee
      of
      the documents described in Section 7.02 hereof, the Trustee will join with
      the
      Company and the Guarantors in the execution of such amended or supplemental
      indenture unless such amended or supplemental indenture directly affects the
      Trustee’s own rights, duties or immunities under this Indenture or otherwise, in
      which case the Trustee may in its discretion, but will not be obligated to,
      enter into such amended or supplemental Indenture.

     

    No
      consideration shall be offered or paid to any Holder to amend or consent to
      a
      waiver or modification of any provision of any of this Indenture or the Notes
      unless the same consideration also is offered to all Holders.

     

    It
      is not
      be necessary for the consent of the Holders of Notes under this Section 9.02
      to
      approve the particular form of any proposed amendment, supplement or waiver,
      but
      it is sufficient if such consent approves the substance thereof.

     

    After
      an
      amendment, supplement or waiver under this Section 9.02 becomes effective,
      the
      Company will mail to the Holders of Notes affected thereby a notice briefly
      describing the amendment, supplement or waiver. Any failure of the Company
      to
      mail such notice, or any defect therein, will not, however, in any way impair
      or
      affect the validity of any such amended or supplemental indenture or waiver.
      Subject to Sections 6.04 and 6.07 hereof, the Holders of a majority in aggregate
      principal amount of the outstanding Notes voting as a single class may waive
      compliance in a particular instance by the Company with any provision of this
      Indenture or the Notes or the Note Guarantees. However, without the consent
      of
      each Holder affected, an amendment, supplement or waiver under this Section
      9.02
      may not (with respect to any Notes held by a non-consenting
      Holder):

     

    (1)
       reduce
      the principal amount of Notes whose Holders must consent to an amendment,
      supplement or waiver;

     

    (2)
       reduce
      the principal of or change the fixed maturity of any Note or alter or waive
      the
      provisions with respect to the redemption of the Notes;

     

    (3)
       reduce
      the rate of or change the time for payment of interest on any Note;

     

    (4)
       make
      any
      change that impairs or adversely affects the conversion rights of any
      Note;

     

    (5)
       except
      as
      expressly provided in this Indenture, change the Conversion Price;

     

    (6)
       reduce
      the Fundamental Change Repurchase Price or the Make-Whole Premium of any Note
      or
      amend or modify in any manner adverse to the Holders the Company’s

     


    
      
        
        

      

      
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    obligation
      to make such payments, whether through an amendment or waiver of provisions
      in
      the covenants, definitions or otherwise;

     

    (7)
       modify
      the provisions in respect of the right of Holders to cause the Company to
      repurchase Notes upon a Fundamental Change in a manner adverse to
      Holders;

     

    (8)
       waive
      a
      Default or Event of Default in the payment of principal of, premium or interest
      on the Notes (except a rescission of acceleration of the Notes by the Holders
      of
      at least a majority in aggregate principal amount of the then outstanding Notes
      and a waiver of the payment default that resulted from such
      acceleration);

     

    (9)
       make
      any
      Note payable in money other than that stated in the Notes;

     

    (10)
       make
      any
      change in the provisions of this Indenture relating to waivers of past Defaults
      or the rights of Holders of Notes to receive payments of principal of or
      premium, if any, or interest on the Notes;

     

    (11)
       waive
      a
      redemption payment with respect to any Note;

     

    (12)
       change
      the ranking of the Notes in a manner adverse to the Holders;

     

    (13)
       release
      any Guarantor from any of its obligations under its Note Guarantee or this
      Indenture, except in accordance with the terms of this Indenture;
      or

     

    (14)
       make
      any
      change in this Article 9 relating to the amendment and waiver
      provisions.

     

    Section
      9.03 Revocation
      and Effect of Consents.

     

    Until
      an
      amendment, supplement or waiver becomes effective, a consent to it by a Holder
      of a Note is a continuing consent by the Holder of a Note and every subsequent
      Holder of a Note or portion of a Note that evidences the same debt as the
      consenting Holder’s Note, even if notation of the consent is not made on any
      Note. However, any such Holder of a Note or subsequent Holder of a Note may
      revoke the consent as to its Note if the Trustee receives written notice of
      revocation before the date the amendment, supplement or waiver becomes
      effective. An amendment, supplement or waiver becomes effective in accordance
      with its terms and thereafter binds every Holder.

     

    Section
      9.04 Notation
      on or Exchange of Notes.

     

    The
      Trustee may place an appropriate notation about an amendment, supplement or
      waiver on any Note thereafter authenticated. The Company in exchange for all
      Notes may issue and the Trustee shall, upon receipt of an Authentication Order,
      authenticate new Notes that reflect the amendment, supplement or
      waiver.

     

    Failure
      to make the appropriate notation or issue a new Note will not affect the
      validity and effect of such amendment, supplement or waiver.

     

    Section
      9.05 Trustee
      to Sign Amendments, etc.

     

    The
      Trustee will sign any amended or supplemental indenture authorized pursuant
      to
      this Article 9 if the amendment or supplement does not adversely affect the
      rights, duties, liabilities or immunities of

     


    
      
        
        

      

      
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    the
      Trustee. The Company may not sign an amended or supplemental indenture until
      the
      Board of Directors of AREP approves it. In executing any amended or supplemental
      indenture, the Trustee shall not be under any responsibility to determine the
      correctness of any provisions contained therein, and will be entitled to receive
      and (subject to Section 7.01 hereof) will be fully protected in relying upon,
      in
      addition to the documents required by Section 16.04 hereof, an Officers’
Certificate and an Opinion of Counsel stating that the execution of such amended
      or supplemental indenture is authorized or permitted by this
      Indenture.

     

    Section
      9.06 Amendments,
      Modifications, Revisions or Supplements to Senior Notes

     

    (a) If,
      at
      any time, the provisions of the 8 1/8% Senior Notes, the 7 1/8% Senior Notes,
      the 2004 Indenture or the 2005 Indenture are amended, modified, revised or
      supplemented in any manner that is favorable or beneficial to the holders of
      such notes and in respect of any provisions therein for which there are
      substantially identical provisions in this Indenture, the Company and the
      Trustee shall, in accordance with this Article 9, including without limitation,
      Section 9.01, enter into a supplemental indenture amending, modifying, revising
      or supplementing this Indenture in an identical manner and no action by the
      Holders shall be required hereunder for the execution or effectiveness of such
      supplemental indenture.

     

    (b) If,
      at
      any time, the provisions of the 8 1/8% Senior Notes, the 7 1/8% Senior Notes,
      the 2004 Indenture or the 2005 Indenture are amended, modified, revised or
      supplemented in any manner that is adverse to the holders of such notes and
      in
      respect of any provisions therein for which there are substantially identical
      provisions in this Indenture, the Holders shall have the right, in their sole
      discretion and in accordance with this Article 9, including without limitation,
      Section 9.02, to cause this Indenture to be amended, modified, revised or
      supplemented in an identical manner. Upon any such amendment, modification,
      revision or supplement of the 8 1/8% Senior Notes or the 7 1/8% Senior Notes,
      the Company shall, or shall cause the Trustee, in the name and at the expense
      of
      the Company to provide the Holders with a notice describing such amendment,
      modification, revision or supplement accompanied by a request to the Holders
      that such Holders consent to the same amendment, modification, revision or
      supplement of this Indenture.

     

    (c) No
      consideration shall be offered or paid to any holder of the 8 1/8% Senior Notes
      or the 7 1/8% Senior Notes to amend, modify, revise or supplement any provision
      of any of such notes, the 2004 Indenture or the 2005 Indenture, as applicable,
      for which there are substantially identical provisions in the Notes or this
      Indenture, unless the same consideration also is offered to the Holders of
      Notes
      under this Indenture. No consideration shall be offered or paid to any holder
      of
      the 8 1/8% Senior Notes or the 7 1/8% Senior Notes to waive any default or
      event
      of default thereunder or to consent to any non-compliance with any provision
      of
      any of such notes, the 2004 Indenture or the 2005 Indenture, as applicable,
      unless there shall be paid to the Holders (at the same time and in the same
      manner) proportional consideration (i.e.
      for
      every $x paid per $1000 of principal amount of 7 1/8% Senior Notes or 8 1/8%
      Senior Notes outstanding amount in connection with such a waiver or consent,
      the
      Holders will each receive $x per $1000 outstanding principal amount of the
      Notes).

     


    
      
        
        

      

      
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    ARTICLE
      10

    NOTE
      GUARANTEES

     

    Section
      10.01. Guarantee.

     

    (a) Subject
      to this Article 10, each Guarantor hereby unconditionally guarantees to each
      Holder of a Note authenticated and delivered by the Trustee and to the Trustee
      and its successors and assigns, irrespective of the validity and enforceability
      of this Indenture, the Notes or the obligations of the Company hereunder or
      thereunder, that:

     

    (1)
      the
      principal of, premium and Additional Interest, if any, and interest on, the
      Notes will be promptly paid in full when due, whether at maturity, by
      acceleration, redemption or otherwise, and interest on the overdue principal
      of
      and interest on the Notes, if any, if lawful, and all other obligations of
      the
      Company to the Holders or the Trustee hereunder or thereunder will be promptly
      paid in full or performed, all in accordance with the terms hereof and thereof;
      and 

     

    (2)
      in
      case of any extension of time of payment or renewal of any Notes or any of
      such
      other obligations, that same will be promptly paid in full when due or performed
      in accordance with the terms of the extension or renewal, whether at stated
      maturity, by acceleration or otherwise.

     

    Failing
      payment when due of any amount so guaranteed or any performance so guaranteed
      for whatever reason, each Guarantor will pay the same immediately. Each
      Guarantor agrees that this is a guarantee of payment and not a guarantee of
      collection.

     

    (b) Each
      Guarantor hereby agrees that its obligations hereunder are unconditional,
      irrespective of the validity, regularity or enforceability of the Notes or
      this
      Indenture, the absence of any action to enforce the same, any waiver or consent
      by any Holder of the Notes with respect to any provisions hereof or thereof,
      the
      recovery of any judgment against the Company, any action to enforce the same
      or
      any other circumstance which might otherwise constitute a legal or equitable
      discharge or defense of a guarantor. Each Guarantor hereby waives diligence,
      presentment, demand of payment, filing of claims with a court in the event
      of
      insolvency or bankruptcy of the Company, any right to require a proceeding
      first
      against the Company, protest, notice and all demands whatsoever and covenant
      that this Note Guarantee will not be discharged except by complete performance
      of the obligations contained in the Notes and this Indenture.

     

    (c) If
      any
      Holder or the Trustee is required by any court or otherwise to return to the
      Company, any Guarantor or any custodian, trustee, liquidator or other similar
      official acting in relation to either the Company or any Guarantor, any amount
      paid by either to the Trustee or such Holder, this Note Guarantee, to the extent
      theretofore discharged, will be reinstated in full force and
      effect.

     

    (d) Each
      Guarantor agrees that it will not be entitled to any right of subrogation in
      relation to the Holders in respect of any obligations guaranteed hereby until
      payment in full of all obligations guaranteed hereby. Each Guarantor further
      agrees that, as between any Guarantors, on the one hand, and the Holders and
      the
      Trustee, on the other hand, (1) the maturity of the obligations guaranteed
      hereby may be accelerated as provided in Article 6 hereof for the purposes
      of
      this Note Guarantee, notwithstanding any stay, injunction or other prohibition
      preventing such acceleration in respect of the obligations guaranteed hereby,
      and (2) in the event of any declaration of acceleration of such obligations
      as
      provided in Article 6 hereof, such obligations (whether or not due and payable)
      will forthwith become due and payable by each Guarantor for the purpose of
      this
      Note Guarantee. Each Guarantor will have the right to seek
      contribution

     


    
      
        
        

      

      
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    from
      any
      non-paying Guarantor so long as the exercise of such right does not impair
      the
      rights of the Holders under the Note Guarantee.

     

    Section
      10.02. Limitation
      on Guarantor Liability.

     

    Each
      Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that
      it
      is the intention of all such parties that the Note Guarantee not constitute
      a
      fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform
      Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar
      federal or state law to the extent applicable to any Note Guarantee. To
      effectuate the foregoing intention, the Trustee, the Holders and each Guarantor
      hereby irrevocably agree that the obligations of such Guarantor will be limited
      to the maximum amount that will, after giving effect to such maximum amount
      and
      all other contingent and fixed liabilities of such Guarantor that are relevant
      under such laws, and after giving effect to any collections from, rights to
      receive contribution from or payments made by or on behalf of any other
      Guarantor in respect of the obligations of such other Guarantor under this
      Article 10, result in the obligations of such Guarantor under its Note Guarantee
      not constituting a fraudulent transfer or conveyance.

     

    Section
      10.03. Execution
      and Delivery of Note Guarantee.

     

    To
      evidence its Note Guarantee set forth in Section 10.01 hereof, each Guarantor
      hereby agrees that a notation of such Note Guarantee substantially in the form
      attached as Exhibit E hereto will be endorsed by an Officer of such Guarantor
      on
      each Note authenticated and delivered by the Trustee and that this Indenture
      will be executed on behalf of such Guarantor by one of its
      Officers.

     

    Each
      Guarantor hereby agrees that its Note Guarantee set forth in Section 10.01
      hereof will remain in full force and effect notwithstanding any failure to
      endorse on each Note a notation of such Note Guarantee.

     

    If
      an
      Officer whose signature is on this Indenture or on the Note Guarantee no longer
      holds that office at the time the Trustee authenticates the Note on which a
      Note
      Guarantee is endorsed, the Note Guarantee will be valid
      nevertheless.

     

    The
      delivery of any Note by the Trustee, after the authentication thereof hereunder,
      will constitute due delivery of the Note Guarantee set forth in this Indenture
      on behalf of the Guarantors.

     

    Section
      10.04. Guarantors
      May Consolidate, etc., on Certain Terms.

     

    (e) Except
      as
      otherwise provided in Section 10.05 hereof and subject to 10.04(b) hereof,
      no
      Guarantor may sell or otherwise dispose of all or substantially all of its
      assets to, or consolidate with or merge with or into (whether or not such
      Guarantor is the surviving Person) another Person, other than the Company or
      another Guarantor, unless:

     

    (1)
       immediately
      after giving effect to such transaction, no Default or Event of Default exists;
      and

     

    (2)
       subject
      to Section 10.05 hereof, the Person acquiring the property in any such sale
      or
      disposition or the Person formed by or surviving any such consolidation or
      merger unconditionally assumes all the obligations of that Guarantor under
      this
      Indenture, its Note Guarantee and the Registration Rights Agreement on the
      terms
      set forth herein or therein, pursuant to a supplemental indenture in form and
      substance reasonably satisfactory to the Trustee.

     


    
      
        
        

      

      
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    In
      case
      of any such consolidation, merger, sale or conveyance and upon the assumption
      by
      the successor Person, by supplemental indenture, executed and delivered to
      the
      Trustee and satisfactory in form to the Trustee, of the Note Guarantee endorsed
      upon the Notes and the due and punctual performance of all of the covenants
      and
      conditions of this Indenture to be performed by the Guarantor, such successor
      Person will succeed to and be substituted for the Guarantor with the same effect
      as if it had been named herein as a Guarantor. Such successor Person thereupon
      may cause to be signed any or all of the Note Guarantees to be endorsed upon
      all
      of the Notes issuable hereunder which theretofore shall not have been signed
      by
      the Company and delivered to the Trustee. All the Note Guarantees so issued
      will
      in all respects have the same legal rank and benefit under this Indenture as
      the
      Note Guarantees theretofore and thereafter issued in accordance with the terms
      of this Indenture as though all of such Note Guarantees had been issued at
      the
      date of the execution hereof.

     

    Except
      as
      set forth in Articles 4 and 5 hereof, and notwithstanding clause 2 above,
      nothing contained in this Indenture or in any of the Notes will prevent any
      consolidation or merger of a Guarantor with or into the Company or another
      Guarantor, or will prevent any sale or conveyance of the property of a Guarantor
      as an entirety or substantially as an entirety to the Company or another
      Guarantor.

     

    (f) Notwithstanding
      the foregoing, any merger or consolidation of AREH (or an Affiliate referred
      to
      in clause (1) of the second paragraph of Section 5.01(b) or any Person that
      is
      the successor of AREH or any such successor ad
      infinitum)
      or any
      sale of all or substantially all of AREH’s assets (or of an Affiliate referred
      to in clause (1) of the second paragraph of Section 5.01(b) or any Person that
      is the successor of AREH or any such successor ad
      infinitum)
      shall
      be governed by Section 5.01(b) hereof and Section 10.04(a) shall not apply
      to
      any such transaction.

     

    Section
      10.05. Releases.

     

    (a) In
      the
      event of any sale or other disposition of all or substantially all of the assets
      of any Guarantor, by way of merger, consolidation or otherwise, or a sale or
      other disposition of all of the Capital Stock of any Guarantor, in each case
      to
      a Person that is not (either before or after giving effect to such transactions)
      the Company or another Guarantor, then such Guarantor (in the event of a sale
      or
      other disposition, by way of merger, consolidation or otherwise, of all of
      the
      Capital Stock of such Guarantor) or the entity acquiring the property (in the
      event of a sale or other disposition of all or substantially all of the assets
      of such Guarantor) will be released and relieved of any obligations under its
      Note Guarantee. Upon delivery by the Company to the Trustee of an Officers’
Certificate and an Opinion of Counsel to the effect that such sale or other
      disposition was made by the Company in accordance with the provisions of this
      Indenture the Trustee will execute any documents reasonably required in order
      to
      evidence the release of any Guarantor from its obligations under its Note
      Guarantee.

     

    (b) Upon
      satisfaction and discharge of this Indenture in accordance with Article 11
      hereof, each Guarantor will be released and relieved of any obligations under
      its Note Guarantee.

     

    Any
      Guarantor not released from its obligations under its Note Guarantee as provided
      in this Section 10.05 will remain liable for the full amount of principal of
      and
      interest and premium and Additional Interest, if any, on the Notes and for
      the
      other obligations of any Guarantor under this Indenture as provided in this
      Article 10.

     


    
      
        
        

      

      
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    ARTICLE
      11

    SATISFACTION
      AND DISCHARGE

     

    Section
      11.01  Satisfaction
      and Discharge.

     

    This
      Indenture will be discharged and will cease to be of further effect as to all
      Notes and Note Guarantees issued hereunder, when:

     

    (1)
       either:

     

    (a) all
      Notes
      that have been authenticated, except lost, stolen or destroyed Notes that have
      been replaced or paid and Notes for whose payment money has theretofore been
      deposited in trust and thereafter repaid to AREP, have been delivered to the
      Trustee for cancellation; or

     

    (b) all
      Notes
      that have not been delivered to the Trustee for cancellation (1) have become
      due
      and payable by reason of the mailing of a notice of redemption or otherwise,
      (2)
      will become due and payable within one year or (3) are to be called for
      redemption within 12 months under arrangements reasonably satisfactory to the
      Trustee for the giving of notice of redemption by the Trustee in the name,
      and
      at the reasonable expense of the Company, and the Company or any Guarantor
      have
      irrevocably deposited or caused to be deposited with the Trustee as trust funds
      in trust solely for the benefit of the Holders, cash in U.S. dollars,
      non-callable Government Securities, or a combination of cash in U.S. dollars
      and
      non-callable Government Securities, in amounts as will be sufficient without
      consideration of any reinvestment of interest, to pay and discharge the entire
      Indebtedness on the Notes not delivered to the Trustee for cancellation for
      principal and premium, if any, and accrued but unpaid interest to the date
      of
      maturity or redemption;

     

    (2)
       no
      Default or Event of Default has occurred and is continuing on the date of the
      deposit or will occur as a result of the deposit and the deposit will not result
      in a breach or violation of, or constitute a default under, any other material
      instrument to which the Company is a party or by which the Company is
      bound;

     

    (3)
       the
      Company has paid or caused to be paid all sums payable by it under this
      Indenture; and

     

    (4)
       the
      Company or any Guarantor have delivered irrevocable instructions to the Trustee
      under this Indenture to apply the deposited money toward the payment of the
      Notes at maturity or the redemption date, as the case may be.

     

    In
      addition, the Company must deliver an Officers’ Certificate and an Opinion of
      Counsel to the Trustee stating that all conditions precedent to satisfaction
      and
      discharge have been satisfied.

     

    Notwithstanding
      the satisfaction and discharge of this Indenture, if money has been deposited
      with the Trustee pursuant to subclause (b) of clause (1) of this Section 11.01,
      the provisions of Sections 11.02 and 8.06 hereof will survive. In addition,
      nothing in this Section 11.01 will be deemed to discharge those provisions
      of
      Section 7.07 hereof, that, by their terms, survive the satisfaction and
      discharge of this Indenture.

     


    
      
        
        

      

      
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    Section
      11.02  Application
      of Trust Money.

     

    Subject
      to the provisions of Section 8.06 hereof, all money deposited with the Trustee
      pursuant to Section 11.01 hereof shall be held in trust and applied by it,
      in
      accordance with the provisions of the Notes and this Indenture, to the payment,
      either directly or through any Paying Agent (including the Company acting as
      its
      own Paying Agent) as the Trustee may determine, to the Persons entitled thereto,
      of the principal (and premium and Additional Interest, if any) and interest
      for
      whose payment such money has been deposited with the Trustee; but such money
      need not be segregated from other funds except to the extent required by
      law.

     

    If
      the
      Trustee or Paying Agent is unable to apply any money or Government Securities
      in
      accordance with Section 11.01 hereof by reason of any legal proceeding or by
      reason of any order or judgment of any court or governmental authority
      enjoining, restraining or otherwise prohibiting such application, the Company’s
      and any Guarantor’s obligations under this Indenture and the Notes shall be
      revived and reinstated as though no deposit had occurred pursuant to Section
      11.01 hereof; provided
      that if
      the Company has made any payment of principal of, premium or Additional
      Interest, if any, or interest on, any Notes because of the reinstatement of
      its
      obligations, the Company shall be subrogated to the rights of the Holders of
      such Notes to receive such payment from the money or Government Securities
      held
      by the Trustee or Paying Agent.

     

    ARTICLE
      12

    CONVERSION

     

    Section
      12.01 Conversion
      Privilege. 

     

    (a) Conversion.
      Subject
      to the further provisions of this Article 12, at any time or times after the
      Issuance Date and prior to the close of business on the Business Day prior
      to
      the Maturity Date, a Holder may convert all or any portion of the principal
      amount of such Holder’s Notes (in principal amounts of $1,000 or any integral
      multiple of $1,000 in excess thereof) into Depositary Units at the Conversion
      Rate then in effect.

     

    (b) Conversion
      Period.
      Notwithstanding the foregoing, if such Note is presented for repurchase pursuant
      to Article 13, such conversion right shall terminate at the close of business
      on
      the last day of the Fundamental Change Repurchase Period for such Note (unless
      the Company shall default on payment when due, in which case the conversion
      right shall extend to the close of business on the date such default is cured
      and such Note is repurchased). 

     

    (c) Fundamental
      Change Conversion.
      The
      conversion by the Holder following its receipt of a Fundamental Change Company
      Notice during the Fundamental Change Repurchase Period shall be a “Fundamental
      Change Conversion”.
      In
      connection with a Fundamental Change Conversion, the Holder shall be entitled
      to
      receive a Make-Whole Premium in accordance with Article 15.

     

    (d) Rights
      of Holders.
      Unless
      otherwise provided herein, a Holder of Notes is not entitled to any rights
      of a
      holder of Depositary Units until such Holder has converted its Notes to
      Depositary Units, and only to the extent such Notes are deemed to have been
      converted into Depositary Units pursuant to this Article 12.

     


    
      
        
        

      

      
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    Section
      12.02 Conversion
      Procedure.

     

    (a) To
      convert a Note (or any portion thereof) into Depositary Units (other than in
      respect of a Forced Conversion, the procedures for which are set forth below)
      on
      any date (the “Conversion
      Date”),
      a
      Holder must (i) complete and manually sign a Notice of Conversion in the form
      attached hereto as Exhibit F (or a facsimile of the conversion notice)
      specifying the principal amount of such Note such Holder seeks to convert and
      deliver such notice (the “Notice
      of Conversion”)
      to a
      Conversion Agent, (ii) surrender the Note to a Conversion Agent, (iii) furnish
      appropriate endorsements and transfer documents if required by a Registrar
      or a
      Conversion Agent and (iv) pay any transfer or similar tax, if required. Anything
      herein to the contrary notwithstanding, in the case of Global Notes, a Notice
      of
      Conversion shall be delivered and such Notes shall be surrendered for conversion
      in accordance with the rules and procedures of the Depositary as in effect
      from
      time to time.
      

     

    (b) If
      the
      last day on which Note may be converted is not a Business Day in a place where
      a
      Conversion Agent is located, the Notes may be surrendered to that Conversion
      Agent on the next succeeding Business Day. 

     

    (c) Holders
      that have already delivered a Fundamental Change Repurchase Notice in respect
      of
      a Note may not surrender such Note for conversion until the Fundamental Change
      Repurchase Notice has been withdrawn in accordance with the procedures set
      forth
      in Article
      13.

     

    (d) All
      Notes
      or portions thereof surrendered for conversion during the period from the close
      of business on a Record Date to the opening of business on the immediately
      following Interest Payment Date shall be accompanied by payment, in funds
      acceptable to the Company, of an amount equal to the interest otherwise payable
      on such Interest Payment Date on the principal amount of the Notes being
      converted; provided, however, that no such payment need be made if there shall
      exist at the time of conversion a default in the payment of interest on the
      Notes. Notwithstanding the foregoing, upon any conversion pursuant to this
      Article 12, the Company shall pay to the applicable Holder the amount of accrued
      and unpaid interest and Additional Interest, if any, on the principal amount
      of
      the Notes so converted in accordance with Section 12.06.

     

    Section
      12.03 Company’s
      Right to Require Conversion; Notices to Trustee. 

     

    (a) The
      Company may, at its option, automatically convert all or a portion of the Notes
      (a “Forced
      Conversion”)
      at any
      time on or after April 5, 2009 and prior to the Maturity Date if: (i) the VWAP
      per Depositary Unit has exceeded One Hundred Fifty percent (150%) of the
      Conversion Price then in effect for at least twenty (20) Trading Days within
      a
      period of thirty (30) consecutive Trading Days ending within five (5) Trading
      Days of the Forced Conversion Notice Date; and (ii) the Equity Conditions shall
      have been satisfied as of the date of the Forced Conversion Notice. The Holders
      shall be entitled to receive a Make-Whole Premium in accordance with Article
      15
      for any Forced Conversion which occurs following the public announcement of
      a
      Fundamental Change during the applicable Fundamental Change Repurchase Period.
      Notwithstanding anything herein to the contrary, if at any time during the
      Forced Conversion Period, the Equity Conditions are no longer satisfied (a
      “Forced
      Conversion Equity Conditions Failure”),
      the
      Company shall provide a notice to the Trustee and each Holder of such failure
      and, unless the Holders of not less than a majority in aggregate principal
      amount of the then outstanding Notes waive such failure, the Company shall
      be
      required to withdraw the Forced Conversion Notice. 

     

    (b) If
      the
      Company elects to convert all or a portion of the principal amount of the Notes
      pursuant to this Section 12.03, the Company, or at its request (which must
      be
      received by the Trustee at

     


    
      
        
        

      

      
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    least
      five (5) Business Days prior to the date the Trustee is requested to give notice
      as described below unless a shorter period is agreed to by the Trustee), the
      Trustee in the name of and at the expense of the Company, shall send or cause
      to
      be sent a notice (the “Forced
      Conversion Notice”)
      of the
      Forced Conversion not more than thirty (30) days and not less than ten (10)
      days
      before the Forced Conversion Date (the “Forced
      Conversion Notice Date”)
      to the
      Holders at their last addresses as they shall appear upon the register of the
      Notes. Except as required by Section 12.03(a), such notice shall be irrevocable.
      Any notice that is sent in the manner herein provided shall be deemed given
      upon
      such Holder’s actual receipt of the Forced Conversion Notice. 

     

    (c) The
      Forced Conversion Notice shall identify the Notes to be converted and shall
      state: 

     

    (1)
       the
      date
      on which a Forced Conversion will become effective (the “Forced
      Conversion Date”);

     

    (2)
       the
      CUSIP
      number of the Notes;

     

    (3)
       the
      place
      or places where the Notes (if such Notes are held other than in global form)
      are
      to be surrendered for conversion;

     

    (4)
       the
      Conversion Price then in effect;

     

    (5)
       the
      name
      and address of the Conversion Agent; 

     

    (6)
       if
      fewer
      than all the outstanding Notes are to be converted, the certificate number
      (if
      such Notes are held other than in global form) and principal amounts of the
      particular Notes to be converted; 

     

    (7)
       that,
      unless the Company fails to issue the Depositary Units in respect of the Notes
      subject to the Forced Conversion and interest and Additional Interest, if
      applicable, interest will cease to accrue on and after the Forced Conversion
      Date in respect of the Notes to be redeemed; and

     

    (8)
       whether
      a
      Make-Whole Premium is required to be paid by the Company upon any Forced
      Conversion occurring after the public announcement of a Fundamental
      Change.

     

    In
      case
      the Notes are to be converted in part only, the Forced Conversion Notice shall
      state the portion of the principal amount thereof to be converted and shall
      state that on and after the Forced Conversion Date, upon surrender of such
      Notes
      (if such Notes are held other than in global form), a new Note or Notes in
      a
      principal amount equal to the unconverted portion thereof will be
      issued.

     

    Concurrently
      with the mailing of any such Forced Conversion Notice (or any withdrawal of
      such
      Forced Conversion Notice or notice of a Forced Conversion Equity Conditions
      Failure), the Company shall file a Form 8-K with the SEC, the form and content
      of which shall be determined by the Company in good faith, but in its sole
      discretion, and in accordance with applicable securities laws. 

     

    (d) During
      the period beginning on the Forced Conversion Date and ending on the date thirty
      (30) days thereafter, the Company shall not publicly offer to sell any Capital
      Stock (or securities convertible into, or exchangeable for, Capital Stock)
      of
      the Company (other than Depositary Units issued pursuant to employee benefit
      plans, qualified stock option plans or other employee compensation plans
      existing prior to such Forced Conversion Date or pursuant to then outstanding
      options, warrants or rights, including the Preferred Units), or publicly offer
      to sell or grant options, rights or warrants with respect to

     


    
      
        
        

      

      
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    any
      Capital Stock or securities convertible into or exercisable or exchangeable
      for
      Capital Stock (other than the grant of options pursuant to option plans existing
      prior to such Forced Conversion Date). The foregoing sentence shall not apply
      to
      (i) the issuance of Depositary Units upon conversion of any of the Notes, (ii)
      in connection with any employee benefit plan which has been approved by the
      Board of Directors of the general partner of the Company, pursuant to which
      the
      Company’s securities may be issued to any employee, officer or director for
      services provided to the Company, (iii) the issuance by the Company of any
      Depositary Units upon the exercise of an option or warrant or the conversion
      of
      a security outstanding on the date hereof (provided that the terms relating
      to
      pricing of the number of Depositary Units issuable upon exercise of such options
      or warrants are not amended or modified in any manner after the date hereof)
      or
      an option or warrant issued or granted in compliance with this paragraph,
      (iv) the sale of Depositary Units in a bona
      fide
      firm
      commitment underwritten offering with a nationally recognized underwriter if
      the
      price per share in such offering exceeds 115% of the Conversion Price (other
      than an “at-the-market offering” as defined in Rule 415(a)(4) under the 1933 Act
      and “equity lines”); (v) the entry into an agreement to issue, and the
      issuance of, Depositary Units, other equity securities of the Company or equity
      equivalents in exchange for assets or equity securities of another entity to
      be
      acquired by the Company, the primary purpose of which is not to raise equity
      capital, and (vi) the issuance of Preferred Units distributed (A) as dividends
      on Preferred Units which are currently outstanding or (B) to satisfy any
      redemption obligation in respect of Preferred Units which are currently
      outstanding or which are issued as dividends in respect thereof.

     

    Section
      12.04 Selection
      of Notes to be Converted. 

     

    If
      less
      than all the Notes are to be converted pursuant to a Forced Conversion, the
      Trustee (or the Depositary, if the Notes are held in global form) shall select
      the Notes to be converted pro rata or
      by lot
      (so long as such method is not prohibited by the rules of any stock exchange
      on
      which the Notes are then listed). The Trustee or the Depositary, as applicable,
      shall make the selection within seven (7) days following its receipt of the
      notice from the Company delivered pursuant to Section 12.03(b) from outstanding
      Notes and shall notify the Company of its selection. 

     

    Notes
      and
      portions of them the Trustee selects shall be in principal amounts of $1,000
      or
      integral multiples of $1,000. 

     

    If
      any
      Note selected for Forced Conversion is converted at the election of the Holder
      in part before termination of the conversion right in respect of the portion
      of
      the Note so selected, the converted portion of such Note shall be deemed (so
      far
      as may be) to be the portion selected for Forced Conversion. Notes which have
      been converted during a selection of Notes subject to Forced Conversion may
      be
      treated by the Trustee or Depositary, as applicable, as outstanding for the
      purpose of such selection.

     

    Section
      12.05 Delivery
      by Holders of Notes Subject to Forced Conversion. 

     

    All
      Notes
      subject to Forced Conversion (if such Notes are held other than in global form)
      shall be delivered to the Company
      to deliver to the Trustee to be canceled. Failure to deliver such Notes shall
      not affect their cancellation. In case any Note of a denomination greater than
      One Thousand United States Dollars ($1,000) shall be surrendered for partial
      conversion, and subject to Section 2.02, the Company shall execute and, upon
      receipt of an Authentication Order in accordance with Section 2.02 hereof,
      the
      Trustee shall authenticate and deliver to the Holder of Notes so surrendered,
      without charge to such Holder, a new Note or Notes in authorized denominations
      in an aggregate principal amount equal to the unconverted portion of the
      surrendered Note. 

     


    
      
        
        

      

      
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    Section
      12.06 Deposit
      of Interest and Additional Interest.

     

    On
      or
      prior to 10:00 a.m., Eastern Time on the Forced Conversion Date or within three
      (3) Trading Days following any other Conversion Date, as applicable, the Company
      shall deposit with the Trustee or with a Paying Agent (or, if the Company is
      acting as its own Paying Agent, segregate and hold in trust as provided in
      Section 2.04) interest accrued on the Notes being converted on the applicable
      Conversion Date or Forced Conversion Date, as applicable, and Additional
      Interest, if any, thereon to such date. The Trustee or the Paying Agent (or,
      if
      the Company is acting as its own Paying Agent, the Company), shall pay such
      interest and Additional Interest, if any, to the converting Holder no later
      than
      the third Business Day after (a) the Conversion Date or (b) receipt of the
      Notes
      delivered as required by Section 12.05, in the case of a Forced
      Conversion. 

     

    Section
      12.07 Delivery
      of Depositary Units. 

     

    The
      Company will, as soon as practicable after the Conversion Date, but
      in no
      event later than three (3) Trading Days following the delivery of a Notice
      of
      Conversion or on the Forced Conversion Date, as applicable (each, a
“Depositary
      Unit Delivery Date”)
      issue,
      or cause to be issued, and deliver to the Conversion Agent or to such Holder,
      or
      such Holder’s nominee or nominees, certificates for the number of full
      Depositary Units to which such Holder shall be entitled. The Person or Persons
      entitled to receive such Depositary Units upon such conversion shall be treated
      for all purposes as the record holder or holders of such Depositary Units,
      as of
      the close of business on Conversion Date or Forced Conversion Date, as
      applicable; provided,
      however,
      that no
      surrender of a Note on any date when the stock transfer books of the Company
      shall be closed shall be effective to constitute the Person or Persons entitled
      to receive the Depositary Units upon such conversion as the record holder or
      holders of such Depositary Units on such date, but such surrender shall be
      effective to constitute the Person or Persons entitled to receive such
      Depositary Units as the record holder or holders thereof for all purposes at
      the
      close of business on the next succeeding day on which such stock transfer books
      are open; provided further that such conversion shall be at the Conversion
      Price
      in effect on the Conversion Date as if the stock transfer books of the Company
      had not been closed. Upon conversion in full of a Note, such Person shall no
      longer be a Holder of such Note. Except as otherwise provided in Section 12.11,
      no payment or adjustment will be made for dividends or distributions on
      Depositary Units issued upon conversion of a Note. 

     

    Upon
      surrender of a Note that is converted in part, the Company shall execute, and
      the Trustee shall authenticate and deliver to the Holder, as soon as
      practicable, a new Note equal in principal amount to the unconverted portion
      of
      the Note surrendered. 

     

    Section
      12.08 No
      Fractional Units. 

     

    The
      Company shall not issue any fraction of a Depositary Unit upon any conversion.
      If the issuance would result in the issuance of a fraction of a Depositary
      Unit,
      the Company shall round such fraction of a Depositary Unit to the nearest whole
      unit. 

     

    Section
      12.09 Taxes
      on Conversion. 

     

    If
      a
      Holder converts a Note, the Company shall pay any documentary, stamp or similar
      issue or transfer tax due on, or in respect of, the issuance or delivery to
      such
      Holder of Depositary Units upon such conversion. However, the Holder shall
      pay
      any such tax which is due because the Holder requests the Depositary Units
      to be
      issued in a name other than the Holder’s name. The Conversion Agent may refuse
      to deliver the certificate representing the Depositary Units being issued in
      a
      name other than the Holder’s name until the Conversion Agent receives a sum
      sufficient to pay any tax which will be

     


    
      
        
        

      

      
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    due
      because the Depositary Units are to be issued in a name other than the Holder’s
      name. Nothing herein shall preclude any tax withholding required by law or
      regulation. 

     

    Section
      12.10 Company
      to Provide Depositary Units. 

     

    (a) The
      Company shall, prior to issuance of any Notes hereunder, and from time to time
      as may be necessary, reserve, out of its authorized but unissued Depositary
      Units, a sufficient number of Depositary Units to permit the conversion of
      all
      outstanding Notes into Depositary Units (including after taking into account
      any
      adjustments to the Conversion Price pursuant to Section 12.11). 

     

    (b) All
      Depositary Units delivered upon conversion of the Notes shall be newly issued
      units, shall be duly authorized and validly issued, and shall be free from
      preemptive rights and free of any lien or adverse claim, other than any lien
      or
      claim created by the Holder thereof.

     

    (c) The
      Company will endeavor promptly to comply with all federal and state securities
      laws regulating the offer and delivery of Depositary Units upon conversion
      of
      Notes, if any, and will list or cause to have quoted such Depositary Units
      on
      any Eligible Market. Any Depositary Units issued upon conversion of a Note
      hereunder which at the time of conversion was a Restricted Definitive Note
      or a
      Restricted Global Note will remain a Restricted Definitive Note or a Restricted
      Global Note, as applicable.

     

    Section
      12.11 Adjustment
      of Conversion Price. 

     

    The
      Conversion Price shall be adjusted from time to time by the Company as
      follows: 

     

    (a) Upon
      the
      completion of the first Offering that is executed at a price per Depositary
      Unit
      that is less than $_________1 
      (as
      adjusted for splits, reverse splits and/or stock dividends effected prior to
      the
      date of such Offering in respect of the Depositary Units - any such adjustment
      to be determined by the Company in good faith, absent manifest error), the
      Conversion Price will be adjusted so that it equals 115% of the price per
      Depositary Unit at which Depositary Units were offered (as reflected on the
      applicable registration statement) by the Company in the Offering. If (and
      only
      if) no Offering occurs within 18 months after the date Notes are first issued
      hereunder, the Conversion Price will adjusted so that it equals 115% of the
      arithmetic average of the VWAP per Depositary Unit of the Depositary Units
      on
      the thirty (30) Trading Days ending on October 5, 2008; provided
      that
      after giving effect to such adjustment, the Conversion Price as adjusted would
      be less than $132.595 (as adjusted for splits, reverse splits and/or stock
      dividends effected prior to the date of such Offering in respect of the
      Depositary Units - any such adjustment to be determined by the Company in good
      faith, absent manifest error). Notwithstanding the preceding contingent
      adjustments, in no event will the Conversion Price be adjusted pursuant to
      this
      Section 12.11(a) to a Conversion Price that is less than $105.00 (as adjusted
      for splits, reverse splits, and/or stock dividends effected prior to the date
      of
      such Offering in respect of the Depositary Units - any such adjustment to be
      determined by the Company in good faith, absent manifest error) per Depositary
      Unit.

     

    (b) In
      case
      the Company shall (i) pay a dividend on its Depositary Units in Depositary
      Units, (ii) make a distribution on its Depositary Units in Depositary Units,
      (iii) subdivide its outstanding Depositary Units into a greater number of units,
      or (iv) combine its outstanding Depositary Units into a smaller number of units,
      the Conversion Price in effect immediately prior thereto shall be adjusted
      so
      that the

     

     

    
      
        

      

      
        	
                1 

              	
                Insert
                  the arithmetic average of the VWAP for Depositary Units for the
                  ten (10)
                  Trading Days ending on April 4,
                  2007.

              


      

    


    
      
        
        

      

      
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    Holder
      of
      any Note thereafter surrendered for conversion shall be entitled to receive
      that
      number of Depositary Units which it would have owned had such Note been
      converted immediately prior to the happening of such event. An adjustment made
      pursuant to this subsection (c) shall become effective immediately after the
      record date in the case of a dividend or distribution and shall become effective
      immediately after the effective date in the case of subdivision or
      combination.

     

    (c) In
      case
      the Company shall issue or declare rights, options or warrants (other than
      pursuant to a Poison Pill) to all holders of its Depositary Units entitling
      them
      (for a period commencing no earlier than the record date described below and
      expiring not more than 60 days after such record date) to subscribe for or
      purchase Depositary Units (or securities convertible into or exercisable or
      exchangeable for Depositary Units) at a price per unit (or having a conversion,
      exercise or exchange price per unit) less than the Current Market Price per
      Depositary Unit on the record date with respect to such issuance, (or if no
      such
      record date is fixed, the Business Day immediately prior to the date of
      announcement of such issuance) (treating the conversion, exercise or exchange
      price per unit of the securities convertible into or exercisable or exchangeable
      for Depositary Units as equal to (x) the sum of (i) the price for a unit of
      the
      security convertible into or exercisable or exchangeable for Depositary Units
      and (ii) any additional consideration initially payable upon the conversion
      of
      such security into or exercise or exchange of such security for Depositary
      Units
      divided by (y) the number of Depositary Units initially underlying such
      security), the Conversion Price in effect shall be adjusted so that the same
      shall equal the price determined by multiplying the Conversion Price in effect
      at the opening of business on the date after such record date (or if no such
      record date is fixed, the applicable Business Day) by a fraction of
      which:

     

    (1)
       the
      numerator of which shall be the number of Depositary Units outstanding on the
      close of business on the record date (or is no such record date is fixed, the
      date of announcement of such issuance), plus the number of units which the
      aggregate offering price of the total number of units so offered for
      subscription or purchase (or the aggregate conversion, exercise or exchange
      price of the securities so offered) would purchase at such Current Market Price
      per Depositary Unit; and 

     

    (2)
       the
      denominator of which shall be the number of Depositary Units outstanding at
      the
      close of business on the record date (or is no such record date is fixed, the
      date of announcement of such issuance), plus the total number of additional
      Depositary Units so offered for subscription or purchase (or into which the
      securities so offered are convertible, exercisable or exchangeable).


     

    Such
      adjustment shall be made successively whenever any such rights, options or
      warrants are issued, and shall become effective on the day following the date
      of
      announcement of such issuance. To
      the
      extent that Depositary Units (or securities convertible into or exercisable
      or
      exchangeable for Depositary Units) are not delivered pursuant to such rights,
      options or warrants, upon the expiration or termination of such rights, option
      or warrants the Conversion Price shall be readjusted to the Conversion Price
      which would then be in effect had the adjustments made upon the issuance of
      such
      rights, options or warrants been made on the basis of the delivery of only
      the
      number of Depositary Units (or securities convertible into or exercisable or
      exchangeable for Depositary Units) actually delivered. In the event that such
      rights, options or warrants are not so issued, the Conversion Price shall again
      be adjusted to be the Conversion Price which would then be in effect if the
      announcement of such issuance had not been made.

     

    (d) In
      case
      the Company shall declare a distribution in respect of its Depositary Units
      of
      any Capital Stock of the Company (other than Depositary Units), evidences of
      indebtedness or other non-cash assets (including securities of any person other
      than AREP but excluding (1) dividends or distributions paid exclusively in
      cash,
      (2) dividends or distributions referred to in Section 12.11(b) or (3)
      distributions made in connection with the liquidation, dissolution or winding
      up
      of the Company), or shall declare a

     


    
      
        
        

      

      
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    distribution
      to all holders of its Depositary Units of rights, options or warrants to
      subscribe for or purchase any of its securities (excluding those rights, options
      and warrants referred to in Section 12.11(c) and also excluding the distribution
      of rights to all holders of Depositary Units pursuant to a Poison Pill or the
      detachment of such rights to the extent set forth in the second following
      paragraph), then in each such case the Conversion Price shall be adjusted so
      that the same shall equal the price determined by multiplying the current
      Conversion Price by a fraction of which:

     

    (1)
       the
      numerator of which shall be the Current Market Price per Depositary Unit on
      such
      record date, less the fair market value on such record date (as determined
      by
      the Board of Directors, whose determination shall be conclusive evidence of
      such
      fair market value and which shall be evidenced by an Officers’ Certificate
      delivered to Trustee) of the portion of the distributed assets so distributed
      applicable to one Depositary Unit (determined on the basis of the number of
      Depositary Units outstanding on the record date); and 

     

    (2)
       the
      denominator of which shall be such Current Market Price per Depositary Unit
      on
      such record date mentioned below.

     

    Such
      adjustment shall be made successively whenever any such distribution is made
      and
      shall become effective immediately after the record date for the determination
      of shareholders entitled to receive such distribution. Subject to the terms
      of
      the first paragraph of this Section 12.11(d):

     

    (i) in
      the
      event that the Company has in effect a preferred shares/units rights plan
      (“Poison
      Pill”),
      upon
      conversion of the Notes into Depositary Units, to the extent that the Poison
      Pill is still in effect upon such conversion, the Holders will receive, in
      addition to the Depositary Units, the rights described therein (whether or
      not
      the rights have separated from the Depositary Units at the time of conversion),
      subject to the limitations set forth in the Poison Pill. If the Poison Pill
      provides that upon separation of rights under such plan from the Company’s
      Depositary Units that the Holders would not be entitled to receive any such
      rights in respect of the Depositary Units issuable upon conversion of the Notes,
      the Conversion Price will be adjusted as provided in this Section 12.11(d)
      (with
      such separation deemed to be the distribution of such rights), subject to
      readjustment in the event of the expiration, termination or redemption of the
      rights. Any distribution of rights or warrants pursuant to a Poison Pill that
      would allow a Holder to receive upon conversion, in addition to the Depositary
      Units, the rights described therein (whether or not the rights have separated
      from the Depositary Units at the time of conversion), shall not constitute
      a
      distribution of rights, options or warrants pursuant to this Article
      12.

     

    (ii) Rights,
      options or warrants distributed by the Company to all holders of Depositary
      Units entitling the holders thereof to subscribe for or purchase Capital Stock
      (either initially or under certain circumstances), which rights, options or
      warrants, until the occurrence of a specified event or events (“Trigger
      Event”):
      (A)
      are deemed to be transferred with such Depositary Units; (B) are not
      exercisable; and (C) are also issued in respect of future issuances of
      Depositary Units, shall be deemed not to have been distributed for purposes
      of
      this Section 12.11 (and no adjustment to the Conversion Price under this Section
      12.11 will be required) until the occurrence of the earliest Trigger Event,
      whereupon such rights, options and warrants shall be deemed to have been
      distributed and an appropriate adjustment (if any is required) to the Conversion
      Price shall be made under this Section 12.11(d). If any such right or warrant,
      including any such existing rights, options or warrants distributed prior to
      the
      date of this Indenture, are subject to events, upon the occurrence of which
      such
      rights, options or warrants become exercisable to purchase different securities,
      evidences of indebtedness or other assets, then the date of the occurrence
      of
      any and each such event shall be deemed to be the date of distribution and
      record date in respect of new rights, options or warrants with such rights
      (and
      a termination or expiration of the existing rights, options or warrants without
      exercise by any of the holders thereof). In addition, in the event of any
      distribution (or deemed distribution) of rights, options or warrants, or
      any

     


    
      
        
        

      

      
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    Trigger
      Event or other event (of the type described in the preceding sentence) in
      respect thereof that was counted for purposes of calculating a distribution
      amount for which an adjustment to the Conversion Price under this Section 12.11
      was made, in the case of any such rights, options or warrants which shall all
      have been redeemed or repurchased without exercise by any holders thereof,
      the
      Conversion Price shall be readjusted upon such final redemption or repurchase
      to
      give effect to such distribution or Trigger Event, as the case may be, as though
      it were a cash distribution, equal to the per unit redemption or repurchase
      price received by a holder or holders of Depositary Units in respect of such
      rights, options or warrants (assuming such holder had retained such rights,
      options or warrants), made to all holders of Depositary Units as of the date
      of
      such redemption or repurchase.

     

    (e) In
      case
      the Company or any of its Subsidiaries shall purchase any Depositary Units
      (as
      defined below) by means of a tender offer, then, effective immediately prior
      to
      the opening of business on the day after the last date (the “Expiration
      Date”)
      tenders could have been made pursuant to such tender offer (as it may be
      amended) (the last time at which such tenders could have been made on the
      Expiration Date is hereinafter sometimes called the “Expiration
      Time”),
      the
      Conversion Price shall be adjusted so that the same shall equal the price
      determined by multiplying the Conversion Price in effect immediately prior
      to
      the close of business on the Expiration Date by a fraction of
      which:

     

    (1)
       the
      numerator shall be the product of the number of Depositary Units outstanding
      (including Purchased Depositary Units (as defined below) but excluding any
      units
      held in the treasury of the Company) immediately prior to the Expiration Time
      multiplied by the Current Market Price per Depositary Unit (as determined in
      accordance with Section 12.11(f)); and 

     

    (2)
       the
      denominator shall be the sum of (x) the aggregate consideration (determined
      as
      set forth below) payable to stockholders of the Company based on the acceptance
      (up to any maximum specified in the terms of the tender offer) of all units
      validly tendered and not withdrawn as of the Expiration Time (the units deemed
      so accepted, up to any such maximum, being referred to as the “Purchased
      Depositary Units”)
      and
      (y) the product of the number of Depositary Units outstanding (less any
      Purchased Depositary Units and excluding any units held in the treasury of
      the
      Company) immediately prior to the Expiration Time and the Current Market Price
      per Depositary Unit (as determined in accordance with Section 12.11(f)).


     

    For
      purposes of this Section 12.11(e), the aggregate consideration in any such
      tender offer shall equal the sum of the aggregate amount of cash consideration
      and the aggregate fair market value (as determined by the Board of Directors,
      whose determination shall be conclusive evidence thereof and which shall be
      evidenced by an Officers’ Certificate delivered to the Trustee) of any other
      consideration payable in such tender offer. In the event that the Company is
      obligated to purchase units pursuant to any such tender offer, but the Company
      is permanently prevented by applicable law from effecting any or all such
      purchases or any or all such purchases are rescinded, the Conversion Price
      shall
      again be adjusted to be the Conversion Price which would have been in effect
      based upon the number of units actually purchased. If the application of this
      Section 12.11(e) to any tender offer would result in an increase in the
      Conversion Price, no adjustment shall be made for such tender offer under this
      Section 12.11(e). For purposes of this Section 12.11(e), the term “tender
      offer”
shall
      mean and include both tender offers and exchange offers, all references to
      “purchases”
of
      units in tender offers (and all similar references) shall mean and include
      both
      the purchase of units in tender offers and the acquisition of units pursuant
      to
      exchange offers, and all references to “tendered
      units”
(and
      all similar references) shall mean and include units tendered in both tender
      offers and exchange offers.

     

    (f) “Current
      Market Price per Depositary Unit”
on
      any
      date means (i) for the purpose of any computation under clauses (c), or (d)
      of
      this Section 12.11, the VWAP per Depositary Unit for the ten

     


    
      
        
        

      

      
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    (10)
      consecutive Trading Days commencing 11 Trading Days before the record date
      in
      respect of distributions, issuances or other events requiring such computation
      under Section 12.11 and (ii) for purposes of any computation under Section
      12.11(e), the arithmetic average of the VWAP per Depositary Unit for the ten
      (10) consecutive Trading Days commencing on the Trading Day next succeeding
      the
      Expiration Date. 

     

    (g) In
      any
      case in which this Section 12.11 shall require that an adjustment be made to
      the
      Conversion Price, in lieu of the foregoing adjustment, the Company may, at
      its
      option, distribute, concurrently with the distribution to the holders of the
      outstanding Depositary Units, Depositary Units, rights, options, warrants,
      any
      Capital Stock (other than Depositary Units), evidences of indebtedness or other
      non-cash assets that such Holder of a Note would have been entitled to receive,
      as applicable, had such Note been converted immediately prior to the happening
      of the record date relating to the event that would have caused such adjustment
      (without regard to the Conversion Limitation).

     

    (h) In
      any
      case in which this Section 12.11 shall require that an adjustment be made
      following a record date, an announcement date or a Determination Date or
      Expiration Date, as the case may be, established for purposes of this Section
      12.11, the Company may elect to defer (but only until five (5) Business Days
      following the filing by the Company with the Trustee of the certificate
      described in Section 12.13) issuing to the Holder of any Note converted after
      such record date or announcement date or Expiration Date the Depositary Units
      and other Capital Stock of the Company issuable upon such conversion over and
      above the Depositary Units and other Capital Stock of the Company issuable
      upon
      such conversion only on the basis of the Conversion Rate prior to adjustment;
      and, in lieu of the units the issuance of which is so deferred, the Company
      shall issue or cause its transfer agents to issue due bills or other appropriate
      evidence prepared by the Company of the right to receive such
      units.

     

    Section
      12.12 No
      Adjustment.

     

    (a) No
      adjustment need be made for issuances of Excluded Securities. 

     

    (b) Without
      limiting the provisions of Section 12.11, no adjustment shall be made
      thereunder, nor shall an adjustment be made to the ability of the Holder to
      convert, for any distribution described therein if the Holder participates
      or
      will participate in the distribution without conversion of such Holder’s Notes
      as if such Holder held a number of Depositary Units equal to the applicable
      Conversion Rate, multiplied by the principal amount (expressed in thousands)
      of
      Notes held by such Holder, without having to convert its Notes. Further, if
      the
      application of the foregoing formulas in Section 12.11 would result in an
      increase in the Conversion Price, no adjustment to the Conversion Price will
      be
      made (except on account of unit combinations).

     

    (c) No
      adjustment in the Conversion Price shall be required unless the adjustment
      would
      require a decrease of at least 1% in the Conversion Price as last adjusted;
      provided,
      however,
      that
      any adjustments which by reason of this Section 12.12 are not required to be
      made shall be carried forward and taken into account in any subsequent
      adjustment and, in any event, shall be carried forward and taken into account
      regardless of whether the aggregate adjustment is less than 1% upon the
      announcement by the Company of a Fundamental Change, upon any Forced Conversion
      Date, upon any redemption of the Notes pursuant to Article 14 and at the
      Maturity Date. 

     

    Section
      12.13 Notice
      of Conversion Price Adjustment. 

     

    (a) Whenever
      the Conversion Price is adjusted, the Company shall promptly mail to the Holders
      a notice of the adjustment and file with the Trustee an Officers’ Certificate
      briefly stating the facts

     


    
      
        
        

      

      
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    requiring
      the adjustment and the manner of computing it. Unless and until the Trustee
      shall receive an Officers’ Certificate setting forth an adjustment of the
      Conversion Price, the Trustee may assume without inquiry that the Conversion
      Price has not been adjusted and that the last Conversion Price of which it
      has
      knowledge remains in effect. 

     

    (b) Whenever,
      rather than adjusting the Conversion Price, the Company elects to distribute,
      concurrently with the distribution to the holders of the outstanding Depositary
      Units, Depositary Units, rights, options, warrants, Capital Stock (other than
      Depositary Units), evidences of indebtedness or other non-cash assets that
      such
      Holder of a Note would have been entitled to receive, as applicable, had such
      Note been converted immediately prior to the happening of the record date
      relating to the event that would have caused such adjustment (without regard
      to
      the Conversion Limitation) as provided in Section 12.11(g), the Company shall,
      contemporaneously with announcing such distribution, or giving notice thereof
      to
      the holders of Depositary Units, provide notice to the Holders, with a copy
      to
      the Trustee, that they will participate in such distribution on an as converted
      basis. 

     

    Section
      12.14 Notice
      of Certain Transactions. 

     

    In
      the
      event that: 

     

    (a) the
      Company shall authorize the granting to the holders of its Depositary Units
      of
      rights or warrants to subscribe for or purchase any Capital Stock of any class
      (or securities convertible into or exercisable or exchangeable for Capital
      Stock
      of any class) or of any other rights;

     

    (b) there
      shall occur any reclassification of the Depositary Units (other than a
      subdivision or combination of its outstanding Depositary Units);

     

    (c) the
      Company consolidates or merges with, or transfers all or substantially all
      of
      its property and assets (or the Capital Stock, property or assets of any of
      its
      Significant Subsidiaries) to, another entity and holders of Depositary Units
      of
      the Company must approve the transaction; or

     

    (d) there
      is
      a dissolution or liquidation of the Company,

     

    and
      in
      any such case the Company (i) is obligated to deliver notice thereof to NYSE
      or
      any Eligible Market on which the Depositary Units are then listed or (ii)
      delivers a notice thereof to any holders of its 7 1/8% Senior Notes or 8 1/8%
      Senior Notes, the Company shall, on the same date as it (x) is required to
      deliver any similar notice to NYSE or such Eligible Market or (y) delivers
      such
      notice to such holders, file with the Trustee a notice and file a Form 8-K
      with
      the SEC stating the proposed record or effective date, as the case may be,
      and
      the action to be effected on such effective date, or as to which such record
      date is being set. Failure to file such notice or any defect therein shall
      not
      affect the validity of any transaction referred to in clause (a), (b), (c)
      or
      (d) of this Section 12.14.

     

    Section
      12.15 Effect
      of Reclassification, Consolidation, Merger or Sale on Conversion
      Privilege. 

     

    If
      any of
      the following shall occur, namely: 

     

    (a)
      any
      reclassification or change of Depositary Units issuable upon conversion of
      the
      Notes (other than any change for which an adjustment is provided in Section
      12.11); 

     


    
      
        
        

      

      
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    (b)
      any
      consolidation or merger or combination to which AREP is a party other than
      a
      merger in which AREP is the continuing entity and which does not result in
      any
      reclassification of, or change (other than as a result of a subdivision or
      combination) in, outstanding Depositary Units; or 

     

    (c)
      any
      sale or conveyance as an entirety or substantially as an entirety of the
      property and assets of AREP, directly or indirectly, to any Person,


     

    and
      as a
      result thereof holders of Depositary Units are entitled to receive any kind
      or
      amount of shares of stock, units and other securities and/or property (including
      cash) in respect of their Depositary Units, then the Company, or such successor,
      purchasing or transferee corporation, as the case may be, shall, as a condition
      precedent to such reclassification, change, combination, consolidation, merger,
      sale or conveyance, execute and deliver to the Trustee a supplemental indenture
      providing that the Holder of each Note then outstanding shall have the right
      to
      convert such Note into the kind and amount of shares of stock, units and other
      securities and property (including cash) receivable upon such reclassification,
      change, combination, consolidation, merger, sale or conveyance by a holder
      of
      the number of Depositary Units deliverable upon conversion of such Note
      immediately prior to such reclassification, change, combination, consolidation,
      merger, sale or conveyance. Such supplemental indenture shall provide for
      adjustments of the Conversion Price which shall be as nearly equivalent as
      may
      be practicable to the adjustments of the Conversion Price provided for in this
      Article 12. If, in the case of any such consolidation, merger, combination,
      sale
      or conveyance, the stock or other securities and property (including cash)
      receivable thereupon by a holder of Depositary Units include shares of stock
      or
      other securities and property of a Person other than the successor, purchasing
      or transferee corporation, as the case may be, in such consolidation, merger,
      combination, sale or conveyance, then such supplemental indenture shall contain
      such additional provisions to protect the interests of the Holders as the Board
      of Directors shall reasonably consider necessary by reason of the foregoing.
      The
      provisions of this Section 12.15 shall similarly apply to successive
      reclassifications, changes, combinations, consolidations, mergers, sales or
      conveyances. 

     

    In
      the
      event that a supplemental indenture pursuant to this Section 12.15 is to be
      executed, without prejudice to any other rights of the Trustee hereunder, the
      Company shall promptly file with the Trustee (x) an Officers’ Certificate
      briefly stating the reasons therefor, the kind or amount of shares of stock
      or
      other securities or property (including cash) receivable by Holders upon the
      conversion of their Notes after any such reclassification, change, combination,
      consolidation, merger, sale or conveyance, any adjustment to be made in respect
      thereof and that all conditions precedent have been complied with and (y) an
      Opinion of Counsel that all conditions precedent have been complied with, and
      shall promptly mail notice thereof to all Holders.

     

    Section
      12.16 Trustee’s
      Disclaimer. 

     

    The
      Trustee shall have no duty to determine when an adjustment under this Article
      12
      should be made, how it should be made or what such adjustment should be, but
      may
      accept as conclusive evidence of that fact or the correctness of any such
      adjustment, and shall be protected in relying upon, an Officers’ Certificate
      including the Officers’ Certificate in respect thereof which the Company is
      obligated to file with the Trustee pursuant to Section 12.13. The Trustee makes
      no representation as to the validity or value of any securities or assets issued
      upon conversion of Notes and the Trustee shall not be responsible for the
      Company’s failure to comply with any provisions of this Article 12. 

     

    The
      Trustee shall not be under any responsibility to determine the correctness
      of
      any provisions contained in any supplemental indenture executed pursuant to
      Section 12.15, but may accept as conclusive evidence of the correctness thereof,
      and shall be fully protected in relying upon, the Officers’

     


    
      
        
        

      

      
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    Certificate
      in respect thereof which the Company is obligated to file with the Trustee
      pursuant to Section 12.15. 

     

    Section
      12.17 Company
      Determination Final. 

     

    Any
      determination that the Company or the Board of Directors must make pursuant
      to
      this Article 12 shall be conclusive if made in good faith and in accordance
      with
      the provisions of this Article 12, absent manifest error, and set forth in
      a
      resolution of the Board of Directors. 

     

    ARTICLE
      13

    REPURCHASE
      UPON A FUNDAMENTAL CHANGE

     

    Section
      13.01 Repurchase
      of Notes at Option of the Holder Upon Fundamental Change. 

     

    (a) General.
      If
      prior to the Maturity Date there shall have occurred a Fundamental Change,
      each
      Holder shall have the option to require all or a portion of its Notes to be
      repurchased (the “Fundamental
      Change Repurchase”)
      in
      cash by the Company at the Fundamental Change Repurchase Price on the
      Fundamental Change Settlement Date in accordance with the following procedures.
      The “Fundamental
      Change Repurchase Price”
means
      the principal amount of the Notes to be repurchased, together with accrued
      and
      unpaid interest and Additional Interest, if any, to, but excluding, the
      Fundamental Change Settlement Date.

     

    (b) Company
      Notice of Fundamental Change.
      Within
      15 days after the Company knows or reasonably should know of the occurrence
      of a
      Fundamental Change, the Company shall deliver a written notice of Fundamental
      Change (the “Fundamental
      Change Company Notice”)
      by
      first-class mail or by overnight courier to the Trustee and to each Holder
      (and
      to beneficial owners as required by applicable law). The notice shall include
      a
      form of Fundamental Change Repurchase Notice (substantially in the Form of
      Exhibit H hereto) to be completed by the Holder and shall state:

     

    (1)
       the
      events causing a Fundamental Change and the date of such Fundamental
      Change;

     

    (2)
       the
      last
      date of the Fundamental Change Repurchase Period by which a Holder must deliver
      a Fundamental Change Repurchase Notice to elect the repurchase option pursuant
      to this Section 13.01; 

     

    (3)
       the
      Fundamental Change Settlement Date;

     

    (4)
       the
      Fundamental Change Repurchase Price;

     

    (5)
       the
      Conversion Price applicable on the date of the Fundamental Change Company
      Notice;

     

    (6)
       that
      Notes as to which a Fundamental Change Repurchase Notice has been given may
      be
      converted pursuant to Article 12 hereof only if such Fundamental Change
      Repurchase Notice has been withdrawn in accordance with the terms of this
      Indenture;

     

    (7)
       that
      Notes must be surrendered to the Paying Agent for cancellation to collect
      payment;

     


    
      
        
        

      

      
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    (8)
       that
      the
      Fundamental Change Repurchase Price for any Note as to which a Fundamental
      Change Repurchase Notice has been duly given and not withdrawn will be paid
      promptly following the later of the Fundamental Change Settlement Date and
      the
      time of surrender of such Note as described in clause (7) above; 

     

    (9)
       the
      procedures the Holder must follow to exercise rights under this Section
      13.01;

     

    (10)
       the
      conversion rights of the Notes;

     

    (11)
       the
      procedures for withdrawing a Fundamental Change Repurchase Notice; 

     

    (12)
       that,
      unless the Company defaults in making payment of such Fundamental Change
      Repurchase Price, Notes covered by any Fundamental Change Repurchase Notice
      will
      cease to be outstanding and interest will cease to accrue on and after the
      Fundamental Change Settlement Date;

     

    (13)
       the
      CUSIP
      number of the Notes; and

     

    (14)
       whether
      a
      Make-Whole Premium is required to be paid by the Company upon any conversion
      in
      connection such a Fundamental Change.

     

    If
      the
      Company requests that the Trustee shall give (at the Company’s expense) such
      Fundamental Change Company Notice in the Company’s name, the Company shall, in
      all cases, prepare the text of such Fundamental Change Company Notice. In
      connection with delivery of the Fundamental Change Company Notice to the
      Holders, the Company shall file a Form 8-K with the SEC containing substantially
      the same information that is required in the Fundamental Change Company Notice,
      or publish such information on the Company’s website or through such other
      public medium as the Company may use at such time.

     

    (c) Fundamental
      Change Repurchase Notice.
      In
      order to exercise its rights under this Section 13.01, a Holder must deliver
      to
      the Paying Agent:

     

    (1)
       a
      written
      notice of repurchase (a “Fundamental
      Change Repurchase Notice”),
      substantially in the form of Exhibit G hereto, at any time during the period
      beginning upon receipt of the Fundamental Change Company Notice and ending
      on
      the twenty (20) Trading Days after the Effective Date (the “Fundamental
      Change Repurchase Period”):

     

    (A) if
      not in
      global form, the certificate numbers of the Notes which such Holder will deliver
      to be repurchased, or, if not certificated, the Fundamental Change Repurchase
      Notice must comply with appropriate procedures of the Depositary; 

     

    (B) the
      portion of the principal amount of the Notes which the Holder will deliver
      to be
      repurchased, which portion must be in a principal amount of $1,000 or integral
      multiples thereof; and

     

    (C) that
      such
      Notes shall be repurchased as of the Fundamental Change Settlement Date pursuant
      to the terms and conditions specified in the Notes and in this Indenture;
      and

     


    
      
        
        

      

      
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    (2)
       the
      Note
      (if such Note is held other than in global form) for cancellation prior to,
      on
      or after the Fundamental Change Settlement Date (together with all necessary
      endorsements) at the offices of the Paying Agent, such delivery being a
      condition to receipt by the Holder of the Fundamental Change Repurchase Price
      therefor; provided
      that
      such Fundamental Change Repurchase Price shall be so paid pursuant to this
      Section 13.01 only if the Note so delivered to the Paying Agent shall conform
      in
      all respects to the description thereof in the related Fundamental Change
      Repurchase Notice. 

     

    Provisions
      of this Indenture that apply to the repurchase of all of a Note also apply
      to
      the repurchase of such portion of such Note.

     

    Any
      repurchase by the Company contemplated pursuant to the provisions of this
      Section 13.01 shall be consummated by the delivery to the Paying Agent of the
      consideration to be received by the Holder promptly following the later of
      the
      Fundamental Change Settlement Date and the time of delivery of the Note.
      Anything herein to the contrary notwithstanding, in the case of any repurchase
      of all or part of any Global Note, such Note(s) shall be surrendered for
      repurchase in accordance with the rules and procedures of the Depositary as
      in
      effect from time to time.

     

    Notwithstanding
      anything herein to the contrary, any Holder delivering to the Paying Agent
      the
      Fundamental Change Repurchase Notice contemplated by this Section 13.01(c)
      shall
      have the right to withdraw such Fundamental Change Repurchase Notice at any
      time
      prior to the close of business on the Business Day prior to the Fundamental
      Change Settlement Date by delivery of a written notice of withdrawal to the
      Paying Agent in accordance with Section 13.02. 

     

    The
      Paying Agent shall promptly notify the Company of the receipt by it of any
      Fundamental Change Repurchase Notice or written notice of withdrawal
      thereof.

     

    (d) Procedure
      Upon Repurchase.
      The
      Company shall deposit cash at the time and in the manner as provided in Section
      13.05, sufficient to pay the aggregate Fundamental Change Repurchase Price
      of
      all Notes to be purchased pursuant to this Section 13.01.

     

    Section
      13.02 Effect
      of Fundamental Change Repurchase Notice

     

    Upon
      receipt by the Paying Agent of the Fundamental Change Repurchase Notice
      specified in Section 13.01(c), the Holder of the Note in respect of which such
      Fundamental Change Repurchase Notice was given shall (unless such Fundamental
      Change Repurchase Notice is withdrawn as specified in the following two
      paragraphs) thereafter be entitled to receive solely the Fundamental Change
      Repurchase Price in respect of such Note. Such Fundamental Change Repurchase
      Price shall be paid to such Holder, subject to receipt of funds by the Paying
      Agent, promptly following the later of (x) the Fundamental Change Settlement
      Date in respect of such Note (provided the conditions in Section 13.01(c) have
      been satisfied) and (y) the time of delivery of such Note to the Paying Agent
      by
      the Holder thereof in the manner required by Section 13.01(c). Notes in respect
      of which a Fundamental Change Repurchase Notice has been given by the Holder
      thereof may not be converted pursuant to Article 12 on or after the date of
      the
      delivery of such Fundamental Change Repurchase Notice unless such Fundamental
      Change Repurchase Notice has first been validly withdrawn as specified in the
      following two paragraphs.

     

    A
      Fundamental Change Repurchase Notice may be withdrawn only by means of a written
      notice of withdrawal delivered to the office of the Paying Agent in accordance
      with the procedures set forth in the Fundamental Change Company Notice at any
      time prior to the close of business on the Business Day prior to the Fundamental
      Change Settlement Date specifying:

     


    
      
        
        

      

      
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    (a) the
      principal amount of the Notes in respect of which such notice of withdrawal
      is
      being submitted; 

     

    (b) if
      certificated, the certificate numbers of the Notes in respect of which such
      notice of withdrawal is being submitted, or, if not certificated, such notice
      of
      withdrawal must comply with appropriate procedures of the Depositary;
      and

     

    (c) the
      principal amount, if any, of such Notes which remains subject to the original
      Fundamental Change Repurchase Notice and which has been or will be delivered
      for
      repurchase by the Company.

     

    There
      shall be no repurchase of any Notes pursuant to Section 13.01 if there has
      occurred (prior to, on or after, as the case may be, the giving, by the Holders
      of such Notes, of the required Fundamental Change Repurchase Notice) and is
      continuing an Event of Default (other than a default in the payment of the
      Fundamental Change Repurchase Price in respect of such Notes). The Paying Agent
      will promptly return to the respective Holders thereof any Notes (x) in respect
      of which a Fundamental Change Repurchase Notice has been withdrawn in compliance
      with this Indenture, or (y) held by it during the continuance of an Event of
      Default (other than a default in the payment of the Fundamental Change
      Repurchase Price in respect of such Notes) in which case, upon such return,
      the
      Fundamental Change Repurchase Notice in respect thereof shall be deemed to
      have
      been withdrawn.

     

    Section
      13.03 Notes
      Repurchased in Whole or in Part. 

     

    In
      connection with any offer to repurchase Notes under Section 13.01 (provided
      that
      such offer or repurchase constitutes an “issuer tender offer” for purposes of
      Rule 13e-4 (which term, as used herein, includes any successor provision
      thereto) under the Exchange Act at the time of such offer or repurchase), the
      Company shall (a) comply with Rule 13e-4 and Rule 14e-1 under the Exchange
      Act,
      (b) file the related Schedule TO (or any successor schedule, form or report)
      under the Exchange Act, and (c) otherwise comply with all Federal and state
      securities laws so as to permit the rights and obligations under Section 13.01to
      be exercised in the time and in the manner specified in Section 13.01 as
      applicable.

     

    Section
      13.04 Deposit
      of Fundamental Change Repurchase Price. 

     

    Prior
      to
      10:00 a.m., Eastern Time, on the Business Day preceding the Fundamental Change
      Settlement Date, the Company shall deposit with the Trustee or with the Paying
      Agent (or, if the Company or a Subsidiary or an Affiliate of either of them
      is
      acting as the Paying Agent, shall segregate and hold in trust as provided
      herein) an amount of money (in immediately available funds if deposited on
      such
      Business Day), sufficient to pay the Fundamental Change Repurchase Price of
      all
      the Notes or portions thereof which are to be repurchased as of the Fundamental
      Change Settlement Date. The Company shall promptly notify the Trustee in writing
      of the amount of any deposits of cash made pursuant to this Section
      13.04

     

    Section
      13.05 Repayment
      to the Company. 

     

    The
      Trustee and the Paying Agent shall return to the Company any cash that remains
      unclaimed, together with interest or dividends, if any, thereon, held by them
      for the payment of the Fundamental Change Repurchase Price; provided
      that to
      the extent that the aggregate amount of cash or Depositary Units deposited
      by
      the Company pursuant to Section 13.05 exceeds the aggregate Fundamental Change
      Repurchase Price of the Notes or portions thereof which the Company is obligated
      to repurchase as of the Fundamental Change Settlement Date, then as soon as
      practicable following the Fundamental Change Settlement Date, the Trustee or
      the
      Paying Agent, as the case may be, shall return any such excess to the
      Company.

     


    
      
        
        

      

      
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    ARTICLE
      14

    REPURCHASE
      REQUIRED BY GAMING AUTHORITIES

     

    Section
      14.01 Redemption
      Pursuant to Gaming Laws.

     

    (a) Notwithstanding
      any other provision of this Indenture, if any Gaming Authority requires that
      a
      Holder or Beneficial Owner of Notes be licensed, qualified or found suitable
      under any applicable Gaming Law and such Holder or Beneficial
      Owner:

     

    (1)
       fails
      to
      apply for a license, qualification or a finding of suitability within 30 days
      (or such shorter period as may be required by the applicable Gaming Authority)
      after being requested to do so by the Gaming Authority; or

     

    (2)
       is
      denied
      such license or qualification or not found suitable;

     

    AREP
      shall then have the right, at its option:

     

    (3)
       to
      require each such Holder or Beneficial Owner to dispose of its Notes within
      30
      days (or such earlier date as may be required by the applicable Gaming
      Authority) of the occurrence of the event described in clause (1) or (2) above,
      or

     

    (4)
       to
      redeem
      the Notes of each such Holder or Beneficial Owner, in accordance with Rule
      14e-1, if applicable, at a redemption price equal to the lowest of:

     

    (A) the
      principal amount thereof, together with accrued and unpaid interest and
      Additional Interest, if any, to the earlier of the date of redemption, the
      date
      30 days after such Holder or Beneficial Owner is required to apply for a
      license, qualification or finding of suitability (or such shorter period that
      may be required by any applicable Gaming Authority) if such Holder or Beneficial
      Owner fails to do so (“Application
      Date”)
      or of
      the date of denial of license or qualification or of the finding of
      unsuitability by such Gaming Authority;

     

    (B) the
      price
      at which such Holder or Beneficial Owner acquired the Notes, together with
      accrued and unpaid interest and Additional Interest, if any, to the earlier
      of
      the date of redemption, the Application Date or the date of the denial of
      license or qualification or of the finding of unsuitability by such Gaming
      Authority; and

     

    (C) such
      other lesser amount as may be required by any Gaming Authority.

     

    Immediately
      upon a determination by a Gaming Authority that a Holder or Beneficial Owner
      of
      the Notes will not be licensed, qualified or found suitable and must dispose
      of
      the Notes, the Holder or Beneficial Owner will, to the extent required by
      applicable Gaming Laws, have no further right:

     

    (5)
       to
      exercise, directly or indirectly, through any trustee or nominee or any other
      person or entity, any right conferred by the Notes, the Note Guarantee or this
      Indenture; or

     

    (6)
       to
      receive any interest, Liquidated Damages, dividend, economic interests or any
      other distributions or payments with respect to the Notes and the Note
      Guarantee

     


    
      
        
        

      

      
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    or
      any
      remuneration in any form with respect to the Notes and the Note Guarantee from
      the Company, any Note Guarantor or the Trustee, except the redemption price
      referred to above.

     

    (b) AREP
      shall notify the Trustee in writing of any such redemption as soon as
      practicable. Any Holder or Beneficial Owner that is required to apply for a
      license, qualification or a finding of suitability will be responsible for
      all
      fees and costs of applying for and obtaining the license, qualification or
      finding of suitability and of any investigation by the applicable Gaming
      Authorities and the Company and any Note Guarantor will not reimburse any Holder
      or Beneficial Owner for such expense.

     

    (c) Except
      as
      set forth in this Article 14, the Notes shall not be redeemable at the option
      of
      the Company.

     

    Section
      14.02 Notices
      to Trustee.

     

    If
      the
      Company elects to redeem Notes pursuant to the redemption provisions of Section
      14.01(a)(4) hereof, it must furnish to the Trustee, at least 15 days but not
      more than 60 days before the applicable redemption date, an Officers’
Certificate setting forth:

     

    (1)
      that
      a redemption is being effected pursuant to Section 14.01(a)(4)
      hereof;

     

    (2)
      the
      applicable redemption date;

     

    (3)
      the
      principal amount of Notes to be redeemed

     

    (4)
      the
      Holder(s) whose Notes are to be redeemed pursuant to Section 14.01(a)(4) hereof;
      and 

     

    (5)
      the
      redemption price pursuant to Section 14.01(a)(4)(A) through (C)
      hereof.

     

    Section
      14.03 Notice
      of Redemption.

     

    The
      Company will mail or cause to be mailed, at least 15 days but not more than
      60
      days before the applicable redemption date, by first class mail, a notice of
      redemption to each Holder whose Notes are to be redeemed at its registered
      address.

     

    The
      notice will identify the Notes to be redeemed and will state:

     

    (1)
      that
      the redemption is being effected pursuant to Section 14.01(a)(4) hereof


     

    (2)
      the
      redemption date;

     

    (3)
      the
      redemption price;

     

    (4)
      the
      name and address of the Paying Agent;

     

    (5)
      that
      Notes called for redemption must be surrendered to the Paying Agent to collect
      the redemption price;

     

    (6)
      that,
      unless the Company defaults in making such redemption payment, interest on
      Notes
      called for redemption ceases to accrue on and after the applicable redemption
      date; and

     


    
      
        
        

      

      
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    (7)
      that
      no representation is made as to the correctness or accuracy of the CUSIP number,
      if any, listed in such notice or printed on the Notes.

     

    At
      the
      Company’s request, the Trustee will give the notice of redemption in the
      Company’s name and at its expense; provided,
      however,
      that
      the Company has delivered to the Trustee, at least 45 days prior to the
      redemption date, an Officers’ Certificate requesting that the Trustee give such
      notice and setting forth the information to be stated in such notice as provided
      in the preceding paragraph.

     

    Section
      14.04 Effect
      of Notice of Redemption.

     

    Once
      notice of redemption is mailed in accordance with Section 14.03 hereof, Notes
      called for redemption become irrevocably due and payable on the applicable
      redemption date at the applicable redemption price. A notice of redemption
      pursuant to this Article 14 may not be conditional.

     

    Section
      14.05 Deposit
      of Redemption Price.

     

    One
      Business Day prior to the applicable redemption date, the Company will deposit
      with the Trustee or with the Paying Agent money sufficient to pay the redemption
      price of and accrued interest and Additional Interest, if any, on all Notes
      to
      be redeemed on such date. The Trustee or the Paying Agent will promptly return
      to the Company any money deposited with the Trustee or the Paying Agent by
      the
      Company in excess of the amounts necessary to pay the redemption price of,
      and
      accrued interest and Additional Interest, if any, on, all Notes to be
      redeemed.

     

    If
      the
      Company complies with the provisions of the preceding paragraph, on and after
      the applicable redemption date, interest will cease to accrue on the Notes
      or
      the portions of Notes called for redemption. If a Note is redeemed on or after
      an interest record date but on or prior to the related interest payment date,
      then any accrued and unpaid interest shall be paid to the Person in whose name
      such Note was registered at the close of business on such record date. If any
      Note called for redemption or purchase is not so paid upon surrender for
      redemption or purchase because of the failure of the Company to comply with
      the
      preceding paragraph, interest shall be paid on the unpaid principal, from the
      redemption date until such principal is paid, and to the extent lawful on any
      interest not paid on such unpaid principal, in each case at the rate provided
      in
      the Notes and in Section 3.01 hereof.

     

    Section
      14.06 Global
      Note Redeemed in Part.

     

    Upon
      surrender of a Note that is redeemed in part, the Company will issue and, upon
      receipt of an Authentication Order, the Trustee will authenticate for the
      Holder(s) at the expense of the Company a new Note equal in principal amount
      to
      the unredeemed portion of the Global Note surrendered.

     

    ARTICLE
      15

    MAKE-WHOLE
      PREMIUM

     

    Section
      15.01 Make-Whole
      Premium. 

     

    (a) If,
      and
      only if, a Fundamental Change occurs while any Notes remain outstanding, the
      Company shall pay the Make-Whole Premium to Holders of the Notes who effect
      a
      Fundamental Change Conversion at any time during the Fundamental Change
      Repurchase Period or in connection with any Forced Conversion occurring
      following the public announcement of a Fundamental Change and during the
      applicable Fundamental Change Repurchase Period. 

     


    
      
        
        

      

      
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    (b) The
      Make-Whole Premium shall be equal to an additional number of Depositary Units
      calculated in accordance with Section 15.01(c) hereof. The Make-Whole Premium
      will be in addition to, and not in substitution for, any cash, securities or
      other assets otherwise due to Holders of Notes upon conversion as described
      in
      this Indenture.

     

    (c) The
      “Make-Whole
      Premium”
shall
      be equal to the principal amount of the Notes to be converted divided by $1,000
      and multiplied by the applicable number of Depositary Units determined by
      reference to the table below (the “Make-Whole
      Premium Table”)
      and is
      based on the effective date of such Change in Control (the “Effective
      Date”)
      and
      the Depositary Unit Price. 

     

    
      
        
        

      

      
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    The
      exact
      Depositary Unit Price and Effective Date may not be set forth on the Make-Whole
      Premium Table, in which case, if the Depositary Unit Price is between two
      Depositary Unit Prices on the Make-Whole Premium Table or the Effective Date
      is
      between two Effective Dates on the Make-Whole Premium Table, the Make-Whole
      Premium shall be determined by straight-line interpolation between Make-Whole
      Premium amounts set forth for the higher and lower Depositary Unit Prices and
      the two Effective Dates, as applicable, based on a 365-day year (or a 366-day
      year if the Effective Date occurs in a leap year). The Depositary Unit Prices
      set forth in the column headers are subject to adjustment pursuant to Section
      15.02.

     

    If
      the
      Depositary Unit Price is less than or equal to $90.00 (subject to adjustment
      pursuant to Section 15.02, the “Depositary
      Unit Price Threshold”),
      the
      Make-Whole Premium shall be equal to zero Depositary Units. If the Depositary
      Unit Price is equal to or greater than $270.00 (subject to adjustment pursuant
      to Section 15.02, the “Depositary
      Unit Price Cap”),
      the
      Make-Whole Premium shall be equal to zero Depositary Units.

     

    (d) The
      Company shall pay the Make-Whole Premium solely in Depositary Units (other
      than
      cash paid in lieu of fractional units) or in the same form of consideration
      into
      which all or substantially all of the Depositary Units have been converted
      or
      exchanged in connection with the Fundamental Change. If holders of the
      Depositary Units receive or have the right to receive more than one form of
      consideration in connection with such Fundamental Change, then, for purposes
      of
      the foregoing, the forms of consideration in which the Make-Whole Premium shall
      be paid shall be in proportion to the different forms of consideration paid
      to
      holders of Depositary Units in connection with such Fundamental
      Change.

     

    (e) The
      Company or, at the Company’s request, the Trustee, in the name and at the
      expense of the Company, (A) shall notify the Holders of the Depositary Unit
      Price and the estimated Make-Whole Premium per $1,000 original principal amount
      of Notes in respect of a Fundamental Change as part of the Fundamental Change
      Company Notice or otherwise in accordance with the notice provisions of the
      Indenture and (B) shall notify the Holders, promptly upon the opening of
      business on the Effective Date of the number of Depositary Units (or such other
      securities, assets or property (including cash) into which all or substantially
      all of the Depositary Units have been converted as of the Effective Date as
      described above) to be paid in respect of the Make-Whole Premium in connection
      with such Fundamental Change, in the manner provided in this Indenture.


     

    (f) Promptly
      after determination of the actual number of Depositary Units to be issued in
      respect of the Make-Whole Premium, the Company shall file a Form 8-K with the
      SEC containing this information or publish such information on the Company’s
      website or through such other public medium as the Company may use at that
      time.

     

    Section
      15.02 Adjustment
      to the Make-Whole Premium. 

     

    Whenever
      the Conversion Price shall be adjusted from time to time by the Company pursuant
      to Section 12.11, the Depositary Unit Price Threshold and the Depositary Unit
      Price Cap shall be adjusted and each of the Depositary Unit Prices set forth
      in
      the Make-Whole Premium Table shall be adjusted. The adjusted Depositary Unit
      Price Threshold, Depositary Unit Price Cap and Depositary Unit Prices set forth
      in the Make-Whole Premium Table shall equal the Depositary Unit Price Threshold,
      Depositary Unit Price Cap and such Depositary Unit Prices, as the case may
      be,
      immediately prior to such adjustment multiplied by a fraction, the numerator
      of
      which is the Conversion Price as so adjusted and the denominator of which is
      the
      Conversion Price immediately prior to the adjustment giving rise to such
      adjustment. Each of the share amounts set forth in the body of the Make-Whole
      Premium Table shall also be adjusted in the same manner and at the same
      time.

     


    
      
        
        

      

      
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    Section
      15.03 Trustee’s
      Disclaimer.

     

    The
      Trustee shall have no duty to determine when a Make-Whole Premium shall be
      required under this Indenture, nor the amount thereof but may accept as
      conclusive evidence of the correctness thereof, and shall be fully protected
      in
      relying upon, the Officers’ Certificate in respect thereof, nor shall the
      Trustee have a duty to determine when an adjustment to the Depositary
      Unit Price Threshold, Depositary Unit Price Cap and Depositary Unit Prices
      should
      be
      made, how it should be made or what such adjustment should be, but may accept
      as
      conclusive evidence of that fact or the correctness of any such adjustment,
      and
      shall be protected in relying upon, an Officers’ Certificate. 

     

    ARTICLE
      16

    MISCELLANEOUS

     

    Section
      16.01  Trust
      Indenture Act Controls.

     

    If
      any
      provision of this Indenture limits, qualifies or conflicts with the duties
      imposed by TIA §318(c), the imposed duties will control.

     

    Section
      16.02  Notices.

     

    Any
      notice or communication by the Company, any Guarantor or the Trustee to the
      others is duly given if in writing and delivered in Person or by first class
      mail (registered or certified, return receipt requested), facsimile transmission
      or overnight air courier guaranteeing next day delivery, to the others’
address:

     

    If
      to the
      Company and/or any Guarantor:

     

    American
      Real Estate Partners, L.P.

    American
      Real Estate Finance Corp.

    767
      Fifth
      Avenue, Suite 4700

    New
      York,
      New York 10153

    Facsimile
      No.: (646) 365-2833

    Attention:
      Felicia P. Buebel, Esq.

     

    With
      a
      copy to:

     

    Proskauer
      Rose LLP

    1585
      Broadway

    New
      York,
      New York 10036

    Telephone:
      (212) 969-3000

    Telecopier:
      (212) 969-2900

    Attention:
      Ian Blumenstein, Esq.

     

    If
      to the
      Trustee: 

     


    
      
        
        

      

      
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    Wilmington
      Trust Company

    Rodney
      Square North

    1100
      North Market Street

    Wilmington,
      DE 19890

    Attention
      of: Corporate Trust Administration

    Facsimile:
      (302) 636-4145

     

    With
      a
      copy to:

    


    Curtis,
      Mallet-Prevost, Colt & Mosle LLP

    101
      Park
      Avenue

    Suite
      3500

    New
      York,
      New York 10178

    Telecopier
      No.: (212) 697-1559

    Attention:
      Kathryn Alisbah, Esq.

                      
      Steven
      J.
      Reisman, Esq.

     

    The
      Company, any Guarantor or the Trustee, by notice to the others, may designate
      additional or different addresses for subsequent notices or
      communications.

     

    All
      notices and communications (other than those sent to Holders) will be deemed
      to
      have been duly given: at the time delivered by hand, if personally delivered;
      five Business Days after being deposited in the mail, postage prepaid, if
      mailed; when receipt acknowledged, if transmitted by facsimile; and the next
      Business Day after timely delivery to the courier, if sent by overnight air
      courier guaranteeing next day delivery.

     

    Any
      notice or communication to a Holder will be mailed by first class mail,
      certified or registered, return receipt requested, or by overnight air courier
      guaranteeing next day delivery to its address shown on the register kept by
      the
      Registrar. Any notice or communication will also be so mailed to any Person
      described in TIA § 313(c), to the extent required by the TIA. Failure to
      mail a notice or communication to a Holder or any defect in it will not affect
      its sufficiency with respect to other Holders.

     

    If
      a
      notice or communication is mailed in the manner provided above within the time
      prescribed, it is duly given, whether or not the addressee receives
      it.

     

    If
      the
      Company mails a notice or communication to Holders, it will mail a copy to
      the
      Trustee and each Agent at the same time.

     

    Section
      16.03  Communication
      by Holders of Notes with Other Holders of Notes.

     

    Holders
      may communicate pursuant to TIA § 312(b) with other Holders with respect to
      their rights under this Indenture or the Notes. The Company, the Trustee, the
      Registrar and anyone else shall have the protection of TIA
§ 312(c).

     

    Section
      16.04  Certificate
      and Opinion as to Conditions Precedent.

     

    Upon
      any
      request or application by the Company to the Trustee to take any action under
      this Indenture, the Company shall furnish to the Trustee:

     

    (1)
       an
      Officers’ Certificate in form and substance reasonably satisfactory to the
      Trustee (which must include the statements set forth in Section 16.05 hereof)
      stating that, in

     


    
      
        
        

      

      
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    the
      opinion of the signers, all conditions precedent and covenants, if any, provided
      for in this Indenture relating to the proposed action have been satisfied;
      and

     

    (2)
       an
      Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
      (which must include the statements set forth in Section 16.05 hereof) stating
      that, in the opinion of such counsel, all such conditions precedent and
      covenants have been satisfied.

     

    Section
      16.05  Statements
      Required in Certificate or Opinion.

     

    Each
      certificate or opinion with respect to compliance with a condition or covenant
      provided for in this Indenture (other than a certificate provided pursuant
      to
      TIA § 314(a)(4)) must comply with the provisions of TIA § 314(e) and
      must include:

     

    (1)
      a
      statement that the Person making such certificate or opinion has read such
      covenant or condition;

     

    (2)
      a
      brief statement as to the nature and scope of the examination or investigation
      upon which the statements or opinions contained in such certificate or opinion
      are based;

     

    (3)
      a
      statement that, in the opinion of such Person, he or she has made such
      examination or investigation as is necessary to enable him or her to express
      an
      informed opinion as to whether or not such covenant or condition has been
      satisfied; and

     

    (4)
      a
      statement as to whether or not, in the opinion of such Person, such condition
      or
      covenant has been satisfied.

     

    Section
      16.06 Rules
      by Trustee and Agents.

     

    The
      Trustee may make reasonable rules for action by or at a meeting of Holders.
      The
      Registrar, Paying Agent or Conversion Agent may make reasonable rules and set
      reasonable requirements for its functions.

     

    Section
      16.07 No
      Personal Liability of Directors, Officers, Employees and
      Stockholders.

     

    No
      director, officer, employee, incorporator, manager (or managing member) direct
      or indirect member, partner or stockholder of the Company, AREH, API or any
      additional Guarantor shall have any liability for any obligations of the
      Company, AREH, API or any additional Guarantor under the Notes, this Indenture,
      any Note Guarantee or for any claim based on, in respect of, or by reason of
      such obligations or its creation. Each Holder of the Notes by accepting a Note
      waives and releases all such liability. The waiver and release are part of
      the
      consideration for issuance of the Notes.

     

    Section
      16.08 Governing
      Law.

     

    THE
      INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS
      INDENTURE, THE NOTES AND THE NOTE GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE
      PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS
      OF
      ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

     


    
      
        
        

      

      
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    Section
      16.09 No
      Adverse Interpretation of Other Agreements.

     

    This
      Indenture may not be used to interpret any other indenture, loan or debt
      agreement of the Company or its Subsidiaries or of any other Person. Any such
      indenture, loan or debt agreement may not be used to interpret this
      Indenture.

     

    Section
      16.10 Successors.

     

    All
      agreements of the Trustee in this Indenture will bind its successors. All
      agreements of each Guarantor in this Indenture will bind its successors, except
      as otherwise provided in Sections 5.01 and 10.05 hereof.

     

    Section
      16.11 Severability.

     

    In
      case
      any provision in this Indenture, the Note Guarantees or in the Notes is invalid,
      illegal or unenforceable, the validity, legality and enforceability of the
      remaining provisions will not in any way be affected or impaired
      thereby.

     

    Section
      16.12 Counterpart
      Originals.

     

    The
      parties may sign any number of copies of this Indenture. Each signed copy will
      be an original, but all of them together represent the same
      agreement.

     

    Section
      16.13 Table
      of Contents, Headings, etc.

     

    The
      Table
      of Contents, Cross-Reference Table and Headings of the Articles and Sections
      of
      this Indenture have been inserted for convenience of reference only, are not
      to
      be considered a part of this Indenture and will in no way modify or restrict
      any
      of the terms or provisions hereof.

     

    Section
      16.14 Clarity.

     

    For
      the
      avoidance of doubt, the inclusion of exceptions to the provisions (including
      covenants and definitions) set forth in this Indenture will not be interpreted
      to imply that the matters permitted by the exception would be limited by the
      terms of such provisions but for such exceptions.

     

    [Signatures
      on following page]

     

    
      
        
        

      

      
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    SIGNATURES

     

    Dated
      as
      of April 5, 2007

    AMERICAN
      REAL ESTATE PARTNERS L.P.

     

    By:
      American Property Investors, Inc., its general partner

     

    By:

    
      

    

    Name:

    Title:

     

     

    AMERICAN
      REAL ESTATE FINANCE CORP.

     

    By:

    
      

    

    Name:

    Title:

     

     

    AMERICAN
      REAL ESTATE HOLDINGS LIMITED PARTNERSHIP

     

    By:
      American Property Investors, Inc., its general partner

     

    By:

    
      

    

    Name:

    Title:

     

     

    WILMINGTON
      TRUST COMPANY

     

    By:

    
      

    

    Name:

    Title: