It was a mixed close for the markets with the Dow tumbling 38 points to 12,269 as oil prices surged to a record high before retreating to close modestly lower. Nasdaq climbed 20 points to 2475.

On the upside

Landry's Restaurants (NYSE: LNY) chief executive Tilman Fertitta offered $1.3 billion, including debt, to acquire the restaurant chain operator.

Wachovia Capital Markets analyst Andrew Casey cited Agco's (NYSE: AG) recent drop in its stock price for upgrading the farm and construction equipment maker.

Goldman Sachs upgraded GameStop (NYSE: GME) for its valuation.

On the downside

Administrative law judge Rafael Epstein recommended that regulators not approve Iberdrola's proposed $4.5 billion acquisition of Energy East (NYSE: EAS).

Hershey Trust Chairman LeRoy Zimmerman said that Hershey (NYSE: HSY) will not be sold. The trust holds a majority of the company stock.

Shares of Fresh Del Monte (NYSE: FDP) tumbled after rival Chiquita (NYSE: CQB) warned of a significant third quarter loss.

In the broad market, advancing issues outpaced decliners by a margin of nearly 5 to 3 on the NYSE and by more than 7 to 5 on Nasdaq. The Russell 2000 which tracks small cap stocks climbed 7 points to 741.