AGREEMENT AND PLAN OF MERGER

Exhibit 10.1

AGREEMENT AND PLAN OF MERGER

BY AND AMONG

NATIONAL ENERGY GROUP, INC.,
A DELAWARE CORPORATION,

AREP OIL & GAS LLC,
A DELAWARE LIMITED LIABILITY COMPANY

AND

NEG IPOCO, INC.
A DELAWARE CORPORATION

DATED: DECEMBER 7, 2005

Execution Copy

TABLE OF CONTENTS

Company Disclosure Schedule
AREP Oil & Gas Disclosure Schedule
Exhibit A — Affiliate Letter
Exhibit B — Certain Financing and Other Transactions
Exhibit C — Form of Certificate of Incorporation of IPO Co.
Schedule 1.7 — Calculation of Percentage
Schedule 4.11 — Affiliates

AGREEMENT AND PLAN OF MERGER

THIS AGREEMENT AND PLAN OF MERGER (this “Agreement”) dated as of December 7, 2005, is by and among NATIONAL ENERGY GROUP, INC., a Delaware corporation (the “Company”), AREP OIL & GAS LLC, a Delaware limited liability company (“AREP Oil & Gas”), NEG IPOCO, INC., a Delaware corporation (“IPO Co.”) wholly owned by AREH (as hereafter defined), and, solely for purposes of Sections 3.2, 3.3 and 4.16 of this Agreement, AMERICAN REAL ESTATE HOLDINGS LIMITED PARTNERSHIP, a Delaware limited partnership (“AREH”). Capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in Section 7.8 of this Agreement.

WHEREAS, AREP Oil & Gas owns an aggregate of 5,597,824 shares of common stock, par value $.01 share, of the Company (the “Company Common Stock”), constituting approximately 50.1% of the total outstanding capital stock of the Company, and wishes to include the Company in a series of transactions, including a business combination and concurrent initial public offering, all as contemplated herein.

WHEREAS, the Board of Directors of the Company (the “Company Board”), based on the recommendation of a special committee thereof consisting solely of Robert H. Kite (the “Special Committee”), has (a) determined that the merger of the Company with and into IPO Co. (the “Merger”), with IPO Co. continuing as the surviving corporation, whereby each Share (as defined below) will, upon the terms and subject to the conditions set forth herein, be converted into the right to receive a number of fully paid and nonassessable shares of IPO Co. Common Stock (as defined below) equal to the Exchange Ratio (as defined below), is fair to, and in the best interests of, holders of such Shares (other than AREP Oil & Gas and its affiliates), and (b) approved and adopted this Agreement and the transactions contemplated hereby and declared their advisability.

WHEREAS, AREP Oil & Gas has advised the Company that (i) it is a buyer, and not a seller, as regards its interest in the Company and its affiliates and (ii) it is willing to support the Merger and has no interest in supporting, as a stockholder of the Company, a transaction for the sale of its stock, or any merger or other disposition of the Company or its assets, to a third party.

WHEREAS, the Board of Directors of AREP Oil & Gas and the Board of Directors of IPO Co. have approved this Agreement and have determined that the Agreement and the Merger are advisable and in the best interests of their respective members and stockholders, as the case may be, and AREH, as the sole stockholder of IPO Co., will, immediately following the execution hereof by the parties hereto, approve and adopt this Agreement.

WHEREAS, for Federal income tax purposes it is intended that the Merger qualify as a reorganization under the provisions of Section 368(a) of the Internal Revenue Code of 1986, as amended (the “Code”).

NOW, THEREFORE, in consideration of the foregoing premises and the representations, warranties, covenants and agreements herein contained, and intending to be legally bound hereby, the Company, AREP Oil & Gas and IPO Co. hereby agree as follows:

ARTICLE I

THE MERGER

          Section 1.1 The Merger . At the Effective Time (as defined below) and upon the terms and subject to the conditions of this Agreement and in accordance with the Delaware General Corporation Law (the “DGCL”), the Company shall be merged with and into IPO Co. (the “Merger”). Following the Merger, IPO Co. shall continue as the surviving corporation (the “Surviving Corporation”) and the separate corporate existence of the Company shall cease. The Merger is intended to qualify as a tax free reorganization under Section 368(a) of the Code.

          Section 1.2 Effective Time . Subject to the terms and conditions set forth in this Agreement, on the Closing Date (as defined in Section 1.3), the parties hereto shall (a) cause the Merger to be consummated by filing a duly executed and acknowledged Certificate of Merger (the “Certificate of Merger”) with the Secretary of State of the State of Delaware pursuant to Section 251 of the DGCL and (b) make such other filings with the Secretary of State of the State of Delaware as shall be necessary to effect the Merger. The Merger shall become effective at such time as a properly executed copy of the Certificate of Merger is duly filed with the Secretary of State of the State of Delaware in accordance with Section 251 of the DGCL, or such later time as AREP Oil & Gas and the Company may agree upon and as may be set forth in the Certificate of Merger (the time the Merger becomes effective being referred to herein as the “Effective Time”).

          Section 1.3 Closing of the Merger . The closing of the Merger (the “Closing”) will take place substantially contemporaneously with the consummation of the IPO Transaction (the “Closing Date”), at the offices of AREP Oil & Gas, located at 100 South Bedford Road, Mt. Kisco, NY, unless another time, date or place is agreed to in writing by the parties hereto.

          Section 1.4 Effects of the Merger . The Merger shall have the effects set forth in the DGCL. Without limiting the generality of the foregoing and subject thereto, at the Effective Time, all the properties, rights, privileges, powers and franchises of the Company and IPO Co. shall vest in the Surviving Corporation, and all debts, liabilities, obligations, restrictions and duties of the Company and IPO Co. shall become the debts, liabilities, obligations, restrictions and duties of the Surviving Corporation.

          Section 1.5 Organizational Documents . The certificate of incorporation and bylaws of IPO Co. in effect at the Effective Time shall be the certificate of incorporation and bylaws of the Surviving Corporation until amended in accordance with Applicable Law; provided, however, that at the Effective Time, the certificate of incorporation of IPO Co. will be amended to change the name of IPO Co. to a name specified by AREP Oil & Gas. The certificate of incorporation of IPO Co. in effect at the Effective Time shall be substantially in the form attached hereto as Exhibit C .

          Section 1.6 Directors, Officers, Managers, etc . The directors, officers and/or managers of IPO Co. at the Effective Time shall be the initial directors, officers and/or managers of the Surviving Corporation, each to hold office in accordance with the organizational

documents of the Surviving Corporation until the earlier of their resignation or removal or until their respective successors are duly elected or appointed and qualified.

          Section 1.7 Conversion of Shares .

     (a) At the Effective Time, each share of Company Common Stock (individually a “Share” and collectively the “Shares”) issued and outstanding immediately prior to the Effective Time (other than Shares held in the Company’s treasury or by any of the Company’s subsidiaries) shall, by virtue of the Merger and without any action on the part of AREP Oil & Gas, IPO Co., the Company or the holder thereof, be converted into the right to receive that fraction of a fully-paid and non-assessable share of common stock, par value $.01 per share, of IPO Co. (“IPO Co. Common Stock”) equal to the Exchange Ratio (as defined below) (the “Merger Consideration”).

     (b) The “Exchange Ratio” shall be determined by multiplying 0.00000008936 [i.e., 1 / 11,190,650 (the number of outstanding Shares)] by the Share Amount (as hereafter defined). The “Share Amount” shall mean that number of shares of IPO Co. Common Stock which results in the holders of the Shares receiving, in the aggregate, a 7.990% (the “Percentage”) economic interest in the entire equity of the Enterprise (as hereafter defined) immediately prior to consummation of the IPO Transaction; provided , however , that the parties acknowledge and agree that: (i) the Percentage is based upon the assumption that the Enterprise will be subject to $500 million of net indebtedness (i.e., total indebtedness minus cash) immediately prior to or simultaneously with consummation of the IPO Transaction (after all incurrences and repayments of debt contemplated in Exhibit B hereto and excluding intercompany notes of the members of the Enterprise and their subsidiaries); (ii) to the extent that the Enterprise is subject to less than $500 million of net indebtedness at such time (after all incurrences and repayments of debt contemplated in Exhibit B hereto and excluding intercompany notes of the members of the Enterprise and their subsidiaries), the Percentage will be reduced by subtracting the Adjustment Amount (as hereafter defined) from the Percentage; and (iii) to the extent that the Enterprise is subject to in excess of $500 million of net indebtedness at such time (after all incurrences and repayments of debt contemplated in Exhibit B hereto and excluding intercompany notes of the members of the Enterprise and their subsidiaries), the Percentage will be increased by adding the Adjustment Amount to the Percentage. The “Adjustment Amount” shall mean the product of (x) 0.6322% and (y) that fraction obtained by dividing the positive difference between $500 million and the actual net indebtedness of the Enterprise immediately prior to or simultaneously with consummation of the IPO Transaction (after all incurrences and repayments of debt contemplated in Exhibit B hereto and excluding intercompany notes of the members of the Enterprise and their subsidiaries) by $100 million. Set forth on Schedule 1.7 hereto is an example of how the Percentage shall be calculated. At Closing, the remaining economic interest in the Enterprise will be held, directly or indirectly, by AREH. The term “Enterprise” shall mean a combination or consolidation of entities which includes 100% of the equity interests in each of AREP Oil & Gas, National Onshore, National Offshore and the Company.

     (c) Each of the parties acknowledge and agree that the structure of the IPO Transaction and the transactions described in Exhibit B have not been determined as of the date of this Agreement but the parties will work together in good faith to ensure that, regardless of the structure of such transactions, the holders of the Shares will receive in the Merger, in the aggregate, the Percentage, it being understood that the percentage interests of such holders in the Enterprise shall be reduced as a result of the issuance of shares of IPO Co. Common Stock pursuant to the IPO Transaction. The dilution resulting from the issuance of shares of IPO Co. Common Stock pursuant to the IPO Transaction will be borne equally by all holders of the IPO Co. Common Stock prior to the IPO Transaction (based upon the number of shares held). Attached as Schedule 1.7 is an example of the proportionate economic interests based on the assumptions set forth therein.

     (d) The parties acknowledge and agree that, following consummation of the IPO Transaction, there will be no restrictions or limitations, other than as imposed by applicable law, on any transactions by IPO Co., including, without limitation, any issuances of securities by IPO Co. (whether involving the issuance of shares of IPO Co. Common Stock pursuant to any employee or executive option plan or other equity incentive plan adopted by IPO Co., the issuance of shares of IPO Co. Common Stock in connection with any secondary equity offering, the issuance of shares of IPO Co. Common Stock upon conversion of any convertible equity or debt securities that IPO Co. may issue in the future, or otherwise), or any adjustment, antidilution protection or preemptive right in respect thereof. The receipt of the Percentage is only for purposes of determining the Merger Consideration and is not an ongoing obligation, and neither IPO Co. nor any other person shall have any duty to cause the Percentage to be maintained following the Merger.

     (e) The parties further acknowledge and agree that: (i) the structure of the IPO Transaction may involve IPO Co. owning an equity interest in AREP Oil & Gas, with the remaining interest (the “Interest”) as of the Closing owned by AREH or affiliates of AREH which would be convertible into shares of IPO Co. Common Stock based upon AREH’s pro rata ownership in the Enterprise (subject to typical anti-dilution protections) (the “Convertible Option”) as a result of the Interest; (ii) initial capital accounts in AREP Oil & Gas will be set at fair market value; and (iii) at the formation of IPO Co., AREH will be issued a share or shares of non-redeemable Class B Common Stock of IPO Co. which will provide AREH with that percentage of the outstanding voting power of IPO Co. Common Stock equivalent to the number of shares of IPO Co. Common Stock it would obtain upon exercise of the Convertible Option; provided, however, that such Class B Common Stock shall not be entitled to any dividends or liquidation preference (other than a nominal preference not to exceed $1,000 in the aggregate) over the shares of IPO Co. Common Stock. Attached as Schedule 1.7 is an example of AREH’s conversion and voting rights.

     (f) At the Effective Time, each Share held in the treasury of the Company immediately prior to the Effective Time shall, by virtue of the Merger and without any action on the part of any party, be canceled, retired and cease to exist, and no shares of IPO Co. Common Stock shall be delivered with respect thereto.

     (g) At the Effective Time, each share of common stock and Class B Common Stock of IPO Co. issued and outstanding immediately prior to the Effective Time shall remain outstanding.

          Section 1.8 Dissenters’ Rights . In accordance with Section 262 of the DGCL, the holders of the Shares shall not be entitled to dissenters’ or appraisal rights.

          Section 1.9 Exchange of Certificates .

     (a) From time to time following the Effective Time, as required by subsections (b) and (c) below, the Surviving Corporation shall deliver to a depository or trust institution of recognized standing selected by AREP Oil & Gas and reasonably acceptable to the Company (the “Exchange Agent”) for the benefit of the holders of Shares for exchange in accordance with this Article I: (i) certificates representing the appropriate number of shares of IPO Co. Common Stock issuable pursuant to Section 1.7 as of the Effective Time; and (ii) cash to be paid in lieu of fractional shares of IPO Co. Common Stock (such shares of IPO Co. Common Stock and such cash, together with any dividends or distributions with respect thereto, are hereinafter referred to as the “Exchange Fund”) pursuant to Section 1.9(f) below, in exchange for outstanding Shares.

     (b) Not later than two (2) Business Days after the Effective Time, AREP Oil & Gas shall cause the Exchange Agent to mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the “Certificates”) and whose shares were converted into the right to receive shares of IPO Co. Common Stock pursuant to Section 1.7: (i) a letter of transmittal (which shall be in customary form and shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other provisions as AREP Oil & Gas and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of IPO Co. Common Stock, together with any dividends or distributions with respect thereto, and, if applicable, cash to be paid for fractional shares of IPO Co. Common Stock. Upon surrender of a Certificate for exchange and cancellation to the Exchange Agent together with such letter of transmittal duly executed and completed in accordance with the instructions thereto, the holder of such Certificate shall be issued a certificate representing that number of whole shares of IPO Co. Common Stock and, if applicable, a check representing the cash consideration to which such holder is entitled on account of a fractional share of IPO Co. Common Stock that such holder has the right to receive pursuant to the provisions of this Article I and any dividends or other distributions to which such holder is entitled pursuant to Section 1.9(c), and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of IPO Co. Common Stock and a check representing the amount of consideration payable in lieu of fractional shares and any dividends or other distributions to which such holder is entitled pursuant to Section 1.9(c), shall be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and

by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.9, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of IPO Co. Common Stock and cash in lieu of any fractional shares of IPO Co. Common Stock as contemplated by this Section 1.9 and any other distributions to which such holder is entitled pursuant to Section 1.9(c).

     (c) No dividends or other distributions declared or made after the Effective Time with respect to IPO Co. Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of IPO Co. Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.9(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of Applicable Law, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of IPO Co. Common Stock issued in exchange therefor without interest (i) promptly, the amount of any cash payable in lieu of a fractional share of IPO Co. Common Stock to which such holder is entitled pursuant to Section 1.9(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of IPO Co. Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of IPO Co. Common Stock.

     (d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder of such shares of IPO Co. Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that AREP Oil & Gas or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.

     (e) All shares of IPO Co. Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.9(c) or 1.9(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares; subject, however, to IPO Co.’s obligation to pay any dividends or make any other distributions with a record date prior to the date of this Agreement that remain unpaid at the Effective Time, and there shall be no further registration of transfers on the stock transfer books of IPO Co. of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to IPO Co. for any reason, they shall be canceled and exchanged as provided in this Article I.

     (f) No fractions of a share of IPO Co. Common Stock shall be issued in the Merger but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of IPO Co. Common Stock (based upon the aggregate number of shares of IPO Co. Common Stock that would have been issued to such holder absent this provision) shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of

cash (without interest) determined by multiplying the closing price for IPO Co. Common Stock, as reported by the securities exchange or quotation service on which shares of IPO Co. Common Stock are traded or quoted, on the first Business Day immediately following the Effective Time that such a quote is available, by the fractional share interest to which such holder would otherwise be entitled. For example, if a holder would receive, in the aggregate 100.25 shares of IPO Co. Common Stock in exchange for his aggregate holdings of Company Common Stock, then he would be entitled to receive cash in respect of 0.25 shares of IPO Co. Common Stock. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares. From time to time after the Effective Time, as promptly as practicable after the determination of the amount of cash, if any, to be paid to holders of fractional share interests who have surrendered their Certificates to the Exchange Agent, the Exchange Agent shall so notify IPO Co., and IPO Co. shall deposit such amount with the Exchange Agent and shall cause the Exchange Agent to forward payments to such holders of fractional share interests subject to and in accordance with the terms of Sections 1.9(b) and (c).

     (g) Any portion of the Exchange Fund that remains undistributed to the holders of Shares upon the expiration of one (1) year after the Effective Time shall be delivered to IPO Co. upon demand and any holders of Shares who have not theretofore complied with this Article 1 shall thereafter look only to IPO Co. as general creditors for payment of their claim for IPO Co. Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to IPO Co. Common Stock.

     (h) Neither the Surviving Corporation nor IPO Co. shall be liable to any holder of Shares or IPO Co. Common Stock for such shares (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Applicable Law.

     (i) Each of IPO Co. and the Exchange Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of Shares such amounts as it is required to deduct and withhold with respect to the making of such payment under the Code, or any provision of state or local tax Law. To the extent that amounts are so withheld by IPO Co. or the Exchange Agent, as the case may be, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares in respect of which such deduction and withholding was made by IPO Co. or the Exchange Agent, as the case may be.

ARTICLE II

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

The Company hereby represents and warrants to AREP Oil & Gas and IPO Co., subject to the exceptions set forth in the Disclosure Schedule (the “Company Disclosure Schedule”) delivered by the Company to AREP Oil & Gas and IPO Co. in accordance with Section 4.10 (which exceptions shall specifically identify a Section, Subsection or clause of a single Section or Subsection hereof, as applicable, to which such exception relates) that:

          Section 2.1 Organization .

     (a) Each of the Company and its subsidiaries is duly organized, validly existing and, except as set forth in Section 2.1 of the Company Disclosure Schedule, in good standing under the laws of the jurisdiction of its incorporation or organization and has all requisite power and authority to own, lease and operate its properties and to carry on its businesses as now being conducted. Except as set forth in Section 2.1(a) of the Company Disclosure Schedule, the Company has no operating subsidiaries other than those incorporated in a state of the United States.

     (b) Except as set forth in Section 2.1(b) of the Company Disclosure Schedule, each of the Company and its subsidiaries is duly qualified or licensed and in good standing to do business in each jurisdiction in which the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification or licensing necessary, except in such jurisdictions where the failure to be so duly qualified or licensed and in good standing would not, individually or in the aggregate, have a Material Adverse Effect on the Company. When used in connection with the Company or its subsidiaries, the term “Material Adverse Effect on the Company” means any circumstance, change in, or effect on the Company and its subsidiaries, taken as a whole, that is, or is reasonably likely in the future to be, materially adverse to the operations, financial condition, earnings or results of operations, or the business (financial or otherwise), of the Company and its subsidiaries, taken as a whole, provided that none of the following shall be deemed, either alone or in combination, to constitute a Material Adverse Effect on the Company: (i) a change in the market price or trading volume of the Company Common Stock; (ii) a failure by the Company to meet internal earnings or revenue projections or the revenue or earnings predictions of equity analysts, or any other revenue or earnings predictions or expectations, for any period ending (or for which earnings are released) on or after the date of this Agreement and prior to the Effective Date, provided further that this Section 2.1(b)(ii) shall not exclude any underlying change, effect, event, occurrence, state of facts or developments which resulted in such failure to meet such estimates, predictions or expectations; (iii) conditions affecting the oil and gas industry as a whole or the U.S. economy as a whole; or (iv) any disruption of customer or supplier relationships arising primarily out of or resulting primarily from actions contemplated by the parties in connection with the announcement of this Agreement and the transactions contemplated hereby, to the extent so attributable.

          Section 2.2 Capitalization .

     (a) The authorized capital stock of the Company consists of Fifteen Million (15,000,000) Shares, of which, as of the date of this Agreement, 11,190,650 Shares were issued and outstanding and One Million (1,000,000) shares of preferred stock, no shares of which are outstanding. All of the outstanding Shares have been validly issued and are fully paid, nonassessable and free of preemptive rights. As of the date of this Agreement, there are outstanding (i) no shares of capital stock or other voting securities of the Company, except as set forth above, (ii) no securities of the Company or any of its subsidiaries convertible into or exchangeable or exercisable for shares of capital stock or other securities of the Company, (iii) no options, preemptive or other rights to acquire from the Company or any of its subsidiaries, and, except as described in the Company SEC Reports (as defined below), no obligations of the Company or any of its subsidiaries to issue any capital stock, voting securities or securities convertible into or exchangeable or exercisable for capital stock or other securities of the Company and (iv) no equity equivalent interests in the ownership or earnings of the Company or its subsidiaries or other similar rights other than as set forth in the limited liability company operating agreement of NEG Holding LLC (collectively “Company Securities”). Except as set forth in Section 2.2(a) of the Company Disclosure Schedule, as of the date of this Agreement, there are no outstanding rights or obligations of the Company or any of its subsidiaries to repurchase, redeem or otherwise acquire any Company Securities. There are no stockholder agreements, voting trusts or other agreements or understandings to which the Company is a party or by which it is bound relating to the voting or registration of any shares of capital stock of the Company.

     (b) All of the outstanding capital stock of the Company’s subsidiaries owned by the Company is owned, directly or indirectly, free and clear of any Lien or any other limitation or restriction (including any restriction on the right to vote or sell the same except as may be provided as a matter of Applicable Law). Except as set forth in Section 2.2(b) of the Company Disclosure Schedule, there are no (i) securities of the Company or any of its subsidiaries convertible into or exchangeable or exercisable for, (ii) options to acquire or (iii) other rights to acquire from the Company or any of its subsidiaries, any capital stock or other ownership interests in or any other securities of any subsidiary of the Company, and there exists no other contract, understanding, arrangement or obligation (whether or not contingent) providing for the issuance or sale, directly or indirectly, of any such capital stock. There are no outstanding contractual obligations of the Company or its subsidiaries to repurchase, redeem or otherwise acquire any outstanding shares of capital stock or other ownership interests in any subsidiary of the Company. For purposes of this Agreement, “Lien” means, with respect to any asset (including any security), any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset; provided, however, that the term “Lien” shall not include (i) statutory liens for taxes that are not yet due and payable or are being contested in good faith by appropriate proceedings and are disclosed in Section 2.2(b) of the Company Disclosure Schedule or that are otherwise not material, (ii) statutory or common law liens to secure obligations to landlords, lessors or renters under leases or rental agreements confined to the premises rented, (iii) deposits or pledges made in connection with, or to secure payment of, workers’ compensation, unemployment :r

insurance, old age pension or other social security programs mandated under Applicable Laws, (iv) statutory or common law liens in favor of carriers, warehousemen, mechanics and materialmen, to secure claims for labor, materials or supplies and other like liens, and (v) restrictions on transfer of securities imposed by applicable state and federal securities laws.

     (c) The Shares constitute the only class of equity securities of the Company or its subsidiaries registered or required to be registered under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

          Section 2.3 Authority .

     (a) The Company has all necessary corporate power and authority to execute and deliver this Agreement, to perform its obligations under this Agreement, and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement by the Company, and the consummation by the Company of the transactions contemplated hereby, have been duly and validly authorized by all necessary corporate action, and no other corporate proceedings on the part of the Company are necessary to authorize this Agreement, or to consummate the transactions contemplated hereby, except (i) the adoption of this Agreement by the affirmative vote of a majority of the outstanding shares of Company Common Stock entitled to vote thereon and (ii) the filing and recordation of appropriate merger documents as required. This Agreement has been duly and validly executed and delivered by the Company and, assuming the due authorization, execution and delivery by AREP Oil & Gas and IPO Co., constitutes the valid, legal and binding agreement of the Company, enforceable against the Company in accordance with its terms, subject to (i) any applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or similar laws now or hereafter in effect relating to creditors’ rights generally, (ii) fiduciary obligations under the laws of the jurisdiction of its incorporation, or (iii) general principles of equity (regardless of whether enforcement is considered in a proceeding at law or in equity).

     (b) Without limiting the generality of the foregoing, the Special Committee, at a meeting duly called and held, has approved and declared this Agreement and the transactions contemplated hereby advisable and has determined that the Merger is fair to, and in the best interests of, holders of the Shares (other than AREH and its affiliates). The Board of Directors of the Company, based on the recommendation of the Special Committee, has (i) determined that the Merger, upon the terms and subject to the conditions set forth herein, is fair to, and in the best interests of, holders of the Shares (other than AREH and its affiliates), and (ii) approved and adopted this Agreement and the transactions contemplated hereby and declared their advisability.

          Section 2.4 SEC Reports; Financial Statements .

     (a) The Company has filed all required forms, reports and documents (“Company SEC Reports”) with the Securities and Exchange Commission (the “SEC”) since January 1, 2004, each of which complied at the time of filing in all material respects with all applicable requirements of the Securities Act of 1933, as amended (the “Securities Act”),

and the Exchange Act, each law as in effect on the dates such forms, reports and documents were filed. None of such Company SEC Reports, including any financial statements or schedules included or incorporated by reference therein, contained when filed any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference therein or necessary in order to make the statements therein in light of the circumstances under which they were made not misleading, except to the extent superseded by a Company SEC Report filed subsequently and prior to the date of this Agreement. The audited consolidated financial statements of the Company included in the Company SEC Reports fairly present, in conformity in all material respects with generally accepted accounting principles (“GAAP”) applied on a consistent basis (except as may be indicated in the notes thereto), the consolidated financial position of the Company and its consolidated subsidiaries as of the dates thereof and their consolidated results of operations and changes in financial position for the periods then ended. Notwithstanding the foregoing, the Company shall not be deemed to be in breach of any of the representations or warranties in this Section 2.4(a) as a result of any changes to the Company SEC Reports that the Company may make in response to comments received from the SEC on the S-4, the Information Statement or the S-1 (each as defined below).

     (b) The Company has heretofore made, and hereafter will make, available to AREP Oil & Gas a complete and correct copy of any amendments or modifications that are required to be filed with the SEC but have not yet been filed with the SEC to agreements, documents or other instruments that previously had been filed by the Company with the SEC pursuant to the Exchange Act.

          Section 2.5 Information Supplied . None of the information supplied or to be supplied by the Company in writing for inclusion or incorporation by reference in (i) the registration statement on Form S-4 to be filed with the SEC by the Surviving Corporation in connection with the issuance of shares of IPO Co. Common Stock in the Merger (the “S-4”) will, at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the information statement relating to the written consent of AREP Oil & Gas, as the holder of a majority of the outstanding Shares, approving the Merger (the “Information Statement”) will, at the date mailed to stockholders of the Company, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein in light of the circumstances under which they are made not misleading, or (iii) the registration statement on Form S-1 to be filed with the SEC by the Surviving Corporation in connection with the IPO Transaction (the “S-1”) will, at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading. The Information Statement will comply as to form in all material respects with the provisions of the Exchange Act and the rules and regulations thereunder. Notwithstanding the foregoing, the Company makes no representation, warranty or covenant with respect to any information supplied or required to be supplied by AREP Oil & Gas or IPO Co. that is contained in or omitted from any of the foregoing documents.

          Section 2.6 Consents and Approvals; No Violations . Except for filings, permits, authorizations, consents and approvals as may be required under applicable requirements of the Securities Act, the Exchange Act, state securities or blue sky laws, and the filing and recordation of the Certificate of Merger as required by the DGCL, no material filing with or notice to and no material permit, authorization, consent or approval of any United States (federal, state or local) or foreign court or tribunal, or administrative, governmental or regulatory body, agency or authority (a “Governmental Entity”) is necessary for the execution and delivery by the Company of this Agreement or the consummation by the Company of the transactions contemplated hereby. Neither the execution, delivery and performance of this Agreement by the Company nor the consummation by the Company of the transactions contemplated hereby will (i) conflict with or result in any breach of any provision of the respective Certificate of Incorporation or bylaws (or similar governing documents) of the Company or any of its subsidiaries, (ii) except as set forth in Section 2.6 of the Company Disclosure Schedule, result in a violation or breach of or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, amendment, cancellation or acceleration or Lien) under any of the terms, conditions or provisions of any material note, bond, mortgage, indenture, lease, license, contract, agreement or other instrument or obligation to which the Company or any of its subsidiaries is a party or by which any of them or any of their respective properties or assets are bound or (iii) except as set forth in Section 2.6 of the Company Disclosure Schedule, violate any material order, writ, injunction, decree, law, statute, rule or regulation applicable to the Company or any of its subsidiaries or any of their respective properties or assets.

          Section 2.7 No Default . Except as set forth in Section 2.7 of the Company Disclosure Schedule, neither the Company nor any of its subsidiaries is in breach, default or violation (and no event has occurred that with notice or the lapse of time or both would constitute a breach, default or violation) of any term, condition or provision of (i) its Certificate of Incorporation or bylaws (or similar governing documents), (ii) any material note, bond, mortgage, indenture, lease, license, contract, agreement or other instrument or obligation to which the Company or any of its subsidiaries is now a party or by which it or any of its properties or assets are bound or (iii) any material order, writ, injunction, decree, law, statute, rule or regulation applicable to the Company or any of its subsidiaries or any of its properties or assets.

          Section 2.8 No Undisclosed Liabilities; Absence of Changes . Except as set forth in Section 2.8 of the Company Disclosure Schedule, as of the date of this Agreement, neither the Company nor any of its subsidiaries has any material liabilities or obligations of any nature, whether or not accrued, contingent or otherwise, that would be required by GAAP to be reflected on a consolidated balance sheet of the Company (including the notes thereto), other than as publicly disclosed by the Company in the Company SEC Reports. Except as set forth in Section 2.8 of the Company Disclosure Schedule, between the date of filing of the latest Company SEC Report and the date of this Agreement, there have been no events, changes or effects with respect to the Company or its subsidiaries that, individually or in the aggregate, have had or reasonably would be expected to have had a Material Adverse Effect on the Company. Without limiting the generality of the foregoing, except as set forth in Section 2.8 of the Company Disclosure Schedule, between the date of filing of the latest Company SEC Report and the date of this Agreement, the Company and its subsidiaries have conducted their respective businesses in all material respects only in, and have not engaged in any material transaction other

than according to, the ordinary and usual course of such businesses consistent with past practices. Except for increases in the ordinary course of business consistent with past practices or as set forth in Section 2.8 of the Company Disclosure Schedule, between the date of filing of the latest Company SEC Report and the date of this Agreement, there has not been any material increase in the compensation payable or that could become payable by the Company or any of its subsidiaries to (a) officers of the Company or any of its subsidiaries or (b) any employee of the Company or any of its subsidiaries.

          Section 2.9 Litigation . Except as publicly disclosed by the Company in the Company SEC Reports or as set forth in Section 2.9 of the Company Disclosure Schedule, there is no suit, claim, action, arbitration, proceeding or investigation pending or, to the knowledge of the Company, threatened against the Company or any of its subsidiaries or any of their respective properties or assets before any Governmental Entity or brought by any person that is material or would reasonably be expected to prevent or delay the consummation of the transactions contemplated by this Agreement beyond the Final Date. Except as publicly disclosed by the Company in the Company SEC Reports, neither the Company nor any of its subsidiaries is subject to any outstanding order, writ, injunction or decree that would reasonably be expected to be material or would reasonably be expected to prevent or delay the consummation of the transactions contemplated hereby.

          Section 2.10 Compliance with Applicable Law . Except as publicly disclosed by the Company in the Company SEC Reports, the Company and its subsidiaries hold all material permits, licenses, variances, exemptions, orders and approvals of all Governmental Entities necessary for the lawful conduct of their respective businesses (the “Company Permits”). Except as publicly disclosed by the Company in the Company SEC Reports, the Company and its subsidiaries are in material compliance with the terms of the Company Permits. Except as publicly disclosed by the Company in the Company SEC Reports, to the knowledge of the Company, the businesses of the Company and its subsidiaries have been and are being conducted in material compliance with all material Applicable Laws. Except as publicly disclosed by the Company in the Company SEC Reports, no investigation or review by any Governmental Entity with respect to the Company or any of its subsidiaries is pending or, to the knowledge of the Company, threatened, nor, to the knowledge of the Company, has any Governmental Entity indicated an intention to conduct the same.

          Section 2.11 Vote Required; Record Date . The affirmative vote of the holders of a majority of the outstanding Shares is the only vote of the holders of any class or series of the Company’s capital stock necessary to approve and adopt this Agreement. The record date for determining the stockholders of record entitled to take the action described in Section 4.6 will, pursuant to Section 213(b) of the DGCL, be December 7, 2005.

          Section 2.12 Tax Treatment . This Agreement shall constitute a plan of reorganization for purposes of Sections 354 and 368 of the Code. Neither the Company (including any of its subsidiaries) nor, to the knowledge of the Company, any of its affiliates has taken or agreed to take action that would prevent the Merger from constituting a reorganization qualifying under the provisions of Section 368(a) of the Code.

          Section 2.13 Opinion of Financial Adviser . Energy Spectrum Advisors, Inc. (the “Company Financial Adviser”) has delivered to the Special Committee its written opinion dated the date of this Agreement to the effect that, subject to the assumptions set forth therein, as of such date the Merger Consideration is fair, from a financial point of view, to the holders of Shares (other than affiliates of the Company). Such opinion has not been withdrawn, revoked or modified. A true and complete copy of such opinion has been delivered to AREH.

          Section 2.14 Brokers . No broker, finder or investment banker (other than the Company Financial Adviser, a true and correct copy of whose engagement agreement has been provided to AREP Oil & Gas) is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Company.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF

AREP OIL & GAS AND IPO CO.

AREP Oil & Gas and IPO Co., subject to the exceptions set forth in the Disclosure Schedule (the “AREP Disclosure Schedule”) delivered by AREP Oil & Gas and IPO Co. to the Company in accordance with Section 4.10 (which exceptions shall specifically identify a Section, Subsection or clause of a single Section or Subsection hereof, as applicable, to which such exception relates) hereby jointly and severally represent and warrant to the Company as follows:

          Section 3.1 Organization .

     (a) Each of AREP Oil & Gas and IPO Co. is duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted.

     (b) Each of AREP Oil & Gas and IPO Co. is duly qualified or licensed and in good standing to do business in each jurisdiction in which the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification or licensing necessary, except in such jurisdictions where the failure to be so duly qualified or licensed and in good standing would not have a Material Adverse Effect on AREP Oil & Gas. When used in connection with AREP Oil & Gas or IPO Co. the term “Material Adverse Effect on AREP Oil & Gas” means any circumstance, change in, or effect on AREP Oil & Gas and its subsidiaries, taken as a whole, that is, or is reasonably likely in the future to be, materially adverse to the operations, financial condition, assets, earnings, or results of operations, or the business (financial or otherwise) of AREP Oil & Gas and its subsidiaries, taken as a whole, provided that none of the following shall be deemed, either alone or in combination, to constitute a Material Adverse Effect on AREP Oil & Gas: (i) a change in the market price or trading volume of the depositary units representing limited partner interests in American Real Estate Partners, L.P. (“AREP”);

(ii) a failure by AREP or AREP Oil & Gas to meet internal earnings or revenue projections or the revenue or earnings predictions of equity analysts, or any other revenue or earnings predictions or expectations, for any period ending (or for which earnings are released) on or after the date of this Agreement and prior to the Effective Date, provided further that this Section 3.1(b)(ii) shall not exclude any underlying change, effect, event, occurrence, state of facts or developments which resulted in such failure to meet such estimates, predictions or expectations; (iii) conditions affecting the oil & gas industry as a whole or the U.S. economy as a whole; or (iv) any disruption of customer or supplier relationships arising primarily out of or resulting primarily from actions contemplated by the parties in connection with or resulting primarily from actions contemplated by the parties in connection with, or which is primarily attributable to, the announcement of this Agreement and the transactions contemplated hereby, to the extent so attributable.

          Section 3.2 Ownership .

     (a) AREH owns 100% of the issued and outstanding membership interests in AREP Oil & Gas; such membership interests have been duly authorized and validly issued in accordance with the limited liability company agreement of AREP Oil & Gas (the “AREP Oil & Gas Operating Agreement”) and are fully paid (to the extent required under the AREP Oil & Gas Operating Agreement) and nonassessable (except as such nonassessability may be affected by Section 18-607 of the Delaware LLC Act); and AREH owns its membership interests free and clear of all liens, encumbrances, security interests, equities, charges or claims.

     (b) AREH owns 100% of the issued and outstanding capital stock of IPO Co.; such capital stock has been duly authorized and validly issued and is fully paid and nonassessable; and AREH owns such capital stock free and clear of all liens, encumbrances, security interests, equities, charges or claims.

     (c) AREP Oil & Gas owns 5,597,824 shares of the issued and outstanding shares of Company Common Stock, which constitutes approximately 50.1% of the issued and outstanding shares of Company Common Stock (the “NEG Interest”); and AREP Oil & Gas owns such capital stock free and clear of all liens, encumbrances, security interests, equities, charges or claims.

     (d) AREP Oil & Gas owns a membership interests in NEG Holding LLC (“NEG Holding”) calculated in accordance with the limited liability company agreement of NEG Holding (the “NEG Holding Operating Agreement”); such membership interest (the “NEG Holding Membership Interest”) has been duly authorized and validly issued in accordance with the NEG Holding Operating Agreement and is fully paid (to the extent required under the NEG Holding Operating Agreement) and nonassessable (except as such nonassessability may be affected by Section 18-607 of the Delaware LLC Act); and AREP Oil & Gas owns its membership interest free and clear of all liens, encumbrances, security interests, equities, charges or claims.

     (e) AREP Oil & Gas wholly owns the sole general partner of each of National Onshore, LP, a Delaware limited partnership (“National Onshore”), and National

Offshore, LP, a Delaware limited partnership (“National Offshore”). Such general partner interests have been duly authorized and validly issued in accordance with the Agreement of Limited Partnership of National Onshore, as amended (the “National Onshore Partnership Agreement”) and the Agreement of Limited Partnership of National Offshore, as amended (the “National Offshore Partnership Agreement”); and AREP Oil & Gas owns such general partner interests free and clear of all liens, encumbrances, security interests, equities, charges or claims.

     (f) AREP Oil & Gas wholly owns the sole limited partner of each of National Onshore and National Offshore; such limited partner interests represented thereby have been duly authorized and validly issued in accordance with each of the National Onshore Partnership Agreement and the National Offshore Partnership Agreement and are fully paid (to the extent required under the National Onshore Partnership Agreement and the National Offshore Partnership Agreement) and nonassessable (except as such nonassessability may be affected by matters described in Section 17-607 of the Delaware LP Act).

          Section 3.3 Authority . Each of AREP Oil & Gas and IPO Co. has all necessary power and authority to execute and deliver this Agreement, to perform its obligations under this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the board of directors of AREP Oil & Gas, and the board of directors of IPO Co., and AREH, as the sole stockholder of IPO Co., will, immediately following the execution hereof by the parties hereto, approve and adopt this Agreement, and no other proceedings on the part of AREH, AREP Oil & Gas or IPO Co. are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by each of, AREP Oil & Gas and IPO Co. and constitutes, assuming the due authorization, execution and delivery hereof by the Company, a valid, legal and binding agreement of each of AREP Oil & Gas and IPO Co. enforceable against each of AREP Oil & Gas and IPO Co. in accordance with its terms, subject to any applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or similar laws now or hereafter in effect relating to creditors’ rights generally or to general principles of equity (regardless of whether enforcement is considered in a proceeding at law or in equity).

          Section 3.4 Financial Statements . AREP Oil & Gas has delivered to the Company unaudited consolidated balance sheets and unaudited statements of operations as of and for the year ended December 31, 2004 and the nine months ended September 30, 2005 (the “AREP Oil & Gas Financial Statement”). The AREP Oil & Gas Financial Statements fairly present in all material respects the financial position and results of operations of AREP Oil & Gas as of the dates and for the periods indicated. The AREP Oil & Gas Financial Statements have been prepared in accordance with GAAP consistently applied (except that the AREP Oil & Gas Financial Statements do not contain all of the financial statements or the notes required under GAAP). The balance sheet for the nine months ended September 30, 2005 continues to reflect the financial condition of AREP Oil & Gas as of the date of this Agreement in all material respects (subject to the occurrence of the Minden Field acquisition and related borrowings and changes occurring in the ordinary course of business).

          Section 3.5 Information Supplied . None of the information supplied or to be supplied by AREP Oil & Gas or IPO Co. in writing for inclusion or incorporation by reference to (i) the S-4 will at the time the S-4 is filed with the SEC and at the time it becomes effective under the Securities Act contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Information Statement will at the date mailed to stockholders contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein in light of the circumstances under which they are made not misleading, or (iii) the S-1 will at the time the S-1 is filed with the SEC and at the time it becomes effective under the Securities Act contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading. The S-4 and the S-1 will comply as to form in all material respects with the provisions of the Securities Act and the rules and regulations thereunder. Notwithstanding the foregoing, none of AREP Oil & Gas or IPO Co. makes any representation, warranty or covenant with respect to any information supplied or required to be supplied by the Company that is contained in or omitted from any of the foregoing documents.

          Section 3.6 Consents and Approvals; No Violations . Except for filings, permits, authorizations, consents and approvals as may be required under and other applicable requirements of the Securities Act, the Exchange Act, state securities or blue sky laws, and the filing and recordation of the Certificate of Merger as required by the DGCL, no material filing with or notice to, and no material permit, authorization, consent or approval of any Governmental Entity is necessary for the execution and delivery by AREP Oil & Gas or IPO Co. of this Agreement or the consummation by AREP Oil & Gas or IPO Co. of the transactions contemplated hereby. Neither the execution, delivery and performance of this Agreement by AREP Oil & Gas or IPO Co. nor the consummation by AREP Oil & Gas or IPO Co. of the transactions contemplated hereby will (i) conflict with or result in any breach of any provision of the respective Certificates of Incorporation or bylaws (or similar governing documents) of AREP Oil & Gas or IPO Co., (ii) result in a violation or breach of or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, amendment, cancellation or acceleration or Lien) under any of the terms, conditions or provisions of any material note, bond, mortgage, indenture, lease, license, contract, agreement or other instrument or obligation to which AREP Oil & Gas or IPO Co. is a party or by which any of them or any of their respective properties or assets are bound or (iii) violate any material order, writ, injunction, decree, law, statute, rule or regulation applicable to AREP Oil & Gas or IPO Co. or any of their respective properties or assets.

          Section 3.7 Litigation . There is no suit, claim, action, proceeding or investigation pending or, to the knowledge of AREP Oil & Gas threatened, against AREP Oil & Gas or any of its subsidiaries or any of their respective properties or assets before any Governmental Entity that could reasonably be expected to prevent or delay the consummation of the transactions contemplated by this Agreement beyond the Final Date. Neither AREP Oil & Gas nor any of its subsidiaries is subject to any outstanding order, writ, injunction or decree that could reasonably be expected to prevent or delay the consummation of the transactions contemplated hereby.

          Section 3.8 Tax Treatment . This Agreement shall constitute a plan of reorganization for purposes of Sections 354 and 368 of the Code. None of AREP Oil & Gas or IPO Co. nor, to the knowledge of AREP Oil & Gas, any of their affiliates has taken, proposes to take, or has agreed to take any action that would prevent the Merger from constituting a reorganization qualifying under the provisions of Section 368(a) of the Code.

          Section 3.9 Brokers . No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of AREP Oil & Gas or IPO Co.

          Section 3.10 No Prior Activities . Except for obligations incurred in connection with its incorporation or organization or the negotiation and consummation of this Agreement and the transactions contemplated hereby, IPO Co. has not incurred any obligation or liability nor engaged in any business or activity of any type or kind or entered into any agreement or arrangement with any person.

          Section 3.11 No Undisclosed Liabilities; Absence of Changes . Except as set forth in Section 3.11 of the AREP Disclosure Schedule, as of the date of this Agreement, neither AREP Oil & Gas nor any of its subsidiaries has any material liabilities or obligations of any nature, whether or not accrued, contingent or otherwise, that would be required by GAAP to be reflected on a consolidated balance sheet of AREP Oil & Gas (including the notes thereto), other than (i) as publicly disclosed by AREP in any reports or documents filed by AREP with the SEC (the “AREP SEC Reports”), (ii) as set forth in the AREP Oil & Gas Financial Statements and (iii) liabilities or obligations incurred since the date of the AREP Oil & Gas Financial Statements in the ordinary course of business and consistent with past practice. Except as set forth in Section 3.11 of the AREP Disclosure