Common use of Alternative Transactions Clause in Contracts

Alternative Transactions. Notwithstanding anything to the contrary in this Letter Agreement, BFE Corp. shall be permitted to solicit, participate in, initiate or facilitate discussions or negotiations with, or provide any information to, any person or group of persons concerning any alternative equity financing or other transaction that would result in the (a) repayment in full of all amounts outstanding under the Bridge Loan, (b) repayment in full of all amounts under the Mezzanine Loan Agreement and (c) satisfy all obligations under the Cargill Acknowledgement Letter (a “Substitute Transaction”). If, as a result of such activities, the Board of Directors of the Company (the “Board”) (excluding any Board member that is an affiliate of Greenlight) determines in good faith after consultation with outside legal counsel and independent financial advisors that (i) it has the opportunity to enter into a Substitute Transaction that will be consummated within a timeframe that is not materially longer than the anticipated timeframe for the Rights Offering and the Concurrent Private Placement but in no event later than February 1, 2011, and (ii) such Substitute Transaction is more favorable to the holders of Common Stock (excluding benefits arising to the Backstop Parties by virtue of the Backstop Commitment) than the Rights Offering and the Concurrent Private Placement (taking into account all the terms and conditions of such Substitute Transaction that the Board deems relevant including, without limitation, any break-up fee provisions, expense reimbursement provisions, conditions to closing and availability of necessary financing) and is reasonably likely to be consummated prior to February 1, 2011, then the Company shall deliver three (3) business days prior notice to Greenlight of its intention to enter into such Substitute Transaction, together with reasonable details concerning the terms and conditions of such Substitute Transaction. After such three (3) business day period, (x) the Board shall be permitted to approve the Substitute Transaction, (y) BFE Corp. shall be permitted to enter into such Substitute Transaction and (z) BFE Corp. shall be permitted to terminate this Letter Agreement; so long as in each case (A) the Substitute Transaction continues to meet the requirements of clause (ii) of this Paragraph 20 and (B) upon execution of definitive documentation relating to a Substitute Transaction, BFE will pay to the Backstop Parties an aggregate break-up fee (to be allocated among the Backstop Parties in accordance with their Commitment Percentages) a sum in cash equal to $350,000 (the “Termination Fee”). For purposes of clarity, the Option Premium shall also remain payable, in addition to the Termination Fee. The proceeds of a Substitute Transaction shall be used, promptly upon consummation of such Substitute Transaction, to (a) first, repay in full all amounts outstanding under the Bridge Loan, (b) second, repay in full all amounts under the Mezzanine Loan Agreement and (c) third, satisfy all obligations under the Cargill Acknowledgement Letter.

Alternative Transactions. Notwithstanding anything to the contrary in this Letter Agreement, BFE Corp. shall be permitted to solicit, participate in, initiate or facilitate discussions or negotiations with, or provide any information to, any person or group of persons concerning any alternative equity financing or other transaction that would result in the (a) repayment in full of all amounts outstanding under the Bridge Loan, (b) repayment in full of all amounts under the Mezzanine Loan Agreement and (c) satisfy all obligations under the Cargill Acknowledgement Letter (a “Substitute Transaction”). If, as a result of such activities, the Board of Directors of the Company (the “Board”) (excluding any Board member that is an affiliate of Greenlight) determines in good faith after consultation with outside legal counsel and independent financial advisors that (i) it has the opportunity to enter into a Substitute Transaction that will be consummated within a timeframe that is not materially longer than the anticipated timeframe for the Rights Offering and the Concurrent Private Placement but in no event later than February 1, 2011, and (ii) such Substitute Transaction is more favorable to the holders of Company Common Stock (excluding benefits arising to the Backstop Parties by virtue of the Backstop Commitment) than the Rights Offering and the Concurrent Private Placement (taking into account all the terms and conditions of such Substitute Transaction that the Board deems relevant including, without limitation, any break-up fee provisions, expense reimbursement provisions, conditions to closing and availability of necessary financing) and is reasonably likely to be consummated prior to February 1, 2011, then the Company shall deliver three (3) business days prior notice to Greenlight of its intention to enter into such Substitute Transaction, together with reasonable details concerning the terms and conditions of such Substitute Transaction. After such three (3) business day period, (x) the Board shall be permitted to approve the Substitute Transaction, (y) BFE Corp. shall be permitted to enter into such Substitute Transaction and (z) BFE Corp. shall be permitted to terminate this Letter Agreement; so long as in each case (A) the Substitute Transaction continues to meet the requirements of clause (ii) of this Paragraph 20 and (B) upon execution of definitive documentation relating to a Substitute Transaction, BFE will pay to the Backstop Parties an aggregate break-up fee (to be allocated among the Backstop Parties in accordance with their Commitment Percentages) a sum in cash equal to $350,000 (the “Termination Fee”). For purposes of clarity, the Option Premium shall also remain payable, in addition to the Termination Fee. The proceeds of a Substitute Transaction shall be used, promptly upon consummation of such Substitute Transaction, to (a) first, repay in full all amounts outstanding under the Bridge Loan, (b) second, repay in full all amounts under the Mezzanine Loan Agreement and (c) third, satisfy all obligations under the Cargill Acknowledgement Letter.

Alternative Transactions. Notwithstanding anything to (a) During the contrary ninety (90) day period commencing upon the date the Plan and this Agreement are filed with the Bankruptcy Court (the "Proposal Period"), Stratosphere shall actively solicit or initiate inquiries or proposals from, and engage in this Letter Agreement, BFE Corp. shall be permitted to solicit, participate in, initiate or facilitate discussions or negotiations with, or and provide any information to, any person or group regarding an investment in and financial restructuring of persons concerning any alternative equity financing or other transaction that would result Stratosphere in lieu of the transactions contemplated by this Agreement (a) repayment in full of all amounts outstanding under the Bridge Loan, (b) repayment in full of all amounts under the Mezzanine Loan Agreement and (c) satisfy all obligations under the Cargill Acknowledgement Letter (a “Substitute Transaction”each an "Alternative Transaction Proposal"). If, as a result of such activities, the Board of Directors Stratosphere shall notify Grand in writing within two (2) business days of the Company (receipt of any Alternative Transaction Proposal, whether written or oral, which notice shall identify the “Board”) (excluding parties to, and set forth in reasonable detail the terms and conditions of, such Alternative Transaction Proposal. Subject to the provisions of Section 6.4 below, Stratosphere may accept any Board member that is an affiliate of Greenlight) determines in good faith after consultation with outside legal counsel such Alternative Transaction Proposal received during the Proposal Period as hereinafter provided, if and independent financial advisors that only if: (i) it has such Alternative Transaction Proposal provides for economic terms and conditions more favorable to Stratosphere than those provided by the opportunity to enter into a Substitute Transaction that will be consummated within a timeframe that is not materially longer than the anticipated timeframe for the Rights Offering Restructuring as described in this Agreement and the Concurrent Private Placement but in no event later than February 1, 2011, and Plan; (ii) such Substitute Alternative Transaction Proposal is in writing and in form and content sufficient to constitute a legally binding and enforceable agreement of the party making such Alternative Transaction Proposal upon acceptance by Stratosphere; (iii) such Alternative Transaction Proposal is not subject to receipt of third-party financing by, or completion of due diligence to the satisfaction of, the party making such Alternative Transaction Proposal, or to other conditions materially different than those provided hereunder; (iv) Stratosphere notifies Grand in writing within ten (10) days of receipt of such Alternative Transaction Proposal that Stratosphere intends to accept such Alternative Transaction; (v) such Alternative Transaction Proposal is accompanied by a cash deposit of at least $2,000,000, which deposit shall be held by Stratosphere pending the acceptance or rejection of such proposal pursuant to this Section 6.3; and (vi) Grand does not, within ten (10) days after receipt of notice that Stratosphere intends to accept such Alternative Transaction Proposal (the "Acceptance Notice"), submit to Stratosphere in writing a competing restructuring proposal that provides for economic terms and conditions more favorable to the holders of Common Stock (excluding benefits arising to the Backstop Parties by virtue of the Backstop Commitment) Stratosphere than the Rights Offering and the Concurrent Private Placement (taking into account all the terms and conditions of such Substitute Alternative Transaction that Proposal, which competing restructuring proposal, if made by a third party as an Alternative Transaction Proposal, would meet the Board deems relevant including, without limitation, any break-up fee provisions, expense reimbursement provisions, conditions to closing and availability requirements of necessary financing(ii) and is (iii) above (a "Grand Competing Proposal"); provided, that Stratosphere may extend the Proposal Period by up to thirty (30) days if, at the expiration of the initial Proposal Period, Stratosphere shall be actively engaged in negotiations that Stratosphere's board of directors reasonably likely to be consummated and in good faith believes will result in the submission of an Alternative Transaction Proposal and Stratosphere notifies Grand in writing of such extension not less than ten (10) days prior to February 1the expiration of such initial Proposal Period. If Grand makes a Grand Competing Proposal as provided above, 2011such Grand Competing Proposal shall be deemed accepted by Stratosphere, then subject to the Company shall deliver three (3provisions of this Section 6.3(a) business days prior notice and subject further to Greenlight the right to submit or receive higher and better proposals as part of its intention to enter into such Substitute Transactionthe Confirmation Hearing, together with reasonable details concerning and the terms and conditions of such Substitute TransactionGrand Competing Proposal shall be implemented through the Plan as contemplated herein, with appropriate amendments to reflect such terms and conditions. After If Grand does not submit a Grand Competing Proposal within the ten (10) day period provided above, Stratosphere may accept the Alternative Transaction Proposal which was the subject of the Acceptance Notice, but only if such Alternative Transaction Proposal is accepted in writing, with a copy of such acceptance provided to Grand as notice of such acceptance, within three (3) business days after the expiration of such ten (10) day period, (x) . Any material change in the Board terms and conditions of an Alternative Transaction Proposal delivered to Grand shall be permitted deemed to approve constitute the Substitute Transaction, (y) BFE Corp. shall receipt of a new Alternative Transaction Proposal which may be permitted to enter into such Substitute Transaction and (z) BFE Corp. shall be permitted to terminate this Letter Agreement; so long as in each case (A) accepted only upon compliance with all of the Substitute Transaction continues to meet the requirements of clause (ii) provisions of this Paragraph 20 and (B) upon execution Section 6.3(a). Upon acceptance by Stratosphere of definitive documentation relating to a Substitute Transaction, BFE will pay to the Backstop Parties an aggregate break-up fee (to be allocated among the Backstop Parties Alternative Transaction Proposal in accordance with their Commitment Percentages) a sum in cash equal this Section 6.3(a), this Agreement, subject to $350,000 (the “Termination Fee”)provisions of Section 6.4 below, shall terminate. For purposes of claritythis Section 6.3, a restructuring proposal shall be deemed to contain economic terms and conditions more favorable to Stratosphere only if the board of directors of Stratosphere (excluding any directors affiliated with Grand or any directors who are otherwise not disinterested with respect to such determination) determines in good faith, based on the advice of an independent financial advisor, that such proposal provides for aggregate consideration to Stratosphere, Gaming Corp. and their respective creditors in an amount greater than would be provided by the proposal to which such proposal is being compared. Any dispute among Stratosphere, Grand and/or any third party regarding the relative economics of any competing proposals shall be submitted by Stratosphere to the Bankruptcy Court for prompt resolution. If an Alternative Transaction Proposal is accepted by Stratosphere in accordance with the terms hereof, the Option Premium shall also remain payable, in addition to the Termination Fee. The proceeds of a Substitute Transaction Plan shall be used, promptly upon consummation of such Substitute Transaction, modified accordingly to (a) first, repay in full all amounts outstanding under reflect the Bridge Loan, (b) second, repay in full all amounts under the Mezzanine Loan Agreement terms and (c) third, satisfy all obligations under the Cargill Acknowledgement Letterconditions thereof.

Alternative Transactions. Notwithstanding anything to the contrary in this Letter Agreement, BFE Corp. shall be permitted to solicit, participate in, initiate or facilitate discussions or negotiations with, or provide any information to, any person or group of persons concerning any alternative equity financing or other transaction that would result in the (a) repayment in full of all amounts outstanding under During the Bridge LoanPre-Closing Period, (b) repayment in full of all amounts under the Mezzanine Loan Agreement and (c) satisfy all obligations under the Cargill Acknowledgement Letter (a “Substitute Transaction”). If, as a result of such activities, the Board of Directors of the Company (the “Board”) (excluding any Board member that is an affiliate of Greenlight) determines in good faith after consultation with outside legal counsel and independent financial advisors that (i) it has the opportunity to enter into a Substitute Transaction that will be consummated within a timeframe that is not materially longer than the anticipated timeframe for the Rights Offering Company and the Concurrent Private Placement but in no event later than February 1other Debtors shall, 2011and shall instruct and direct their respective Representatives to, immediately cease and terminate any ongoing solicitation with respect to any Alternative Transaction, and (ii) the Company and the other Debtors shall not, and the Company and the other Debtors shall instruct and direct their respective Representatives not to, solicit, support, file or prosecute any Alternative Transaction or object to or take any other action that would reasonably be expected to prevent, interfere with, delay, or impede approval of this Agreement, solicitation, approval of the Disclosure Statement, or the confirmation and consummation of the Plan and the Restructuring. Notwithstanding the foregoing sentence, if following the date of this Agreement (x) if the Company or any of the other Debtors receives a proposal or offer for an Alternative Transaction not solicited in violation of this Section 6.8 (an “Alternative Transaction Proposal”) from any Person and (y) the Board has determined in good faith, after consultation with its outside legal counsel and its financial advisor, that failure to consider and engage in discussions and negotiations in connection with respect to such Substitute Alternative Transaction is more favorable Proposal would be inconsistent with their fiduciary duties, then the Company, the other Debtors, and their Representatives shall not be prohibited from considering and engaging in negotiations with respect to the holders of Common Stock (excluding benefits arising to Alternative Transaction Proposal consistent with the Backstop Parties by virtue of the Backstop Commitment) than the Rights Offering Company’s and the Concurrent Private Placement (taking into account all Board’s exercise of their fiduciary duties; provided that if the terms and conditions of such Substitute Company receives an Alternative Transaction that the Board deems relevant including, without limitation, any break-up fee provisions, expense reimbursement provisions, conditions to closing and availability of necessary financing) and is reasonably likely to be consummated prior to February 1, 2011Proposal, then the Company shall deliver three (3) business days prior notice to Greenlight of its intention to enter into such Substitute Transaction, together with reasonable details concerning the terms and conditions of such Substitute Transaction. After such three (3) business day period, (x) the Board shall be permitted to approve the Substitute Transaction, (y) BFE Corp. shall be permitted to enter into such Substitute Transaction and (z) BFE Corp. shall be permitted to terminate this Letter Agreement; so long as in each case (A) within one (1) calendar day of receiving such Alternative Transaction Proposal, notify in writing the Substitute Backstop Parties of the receipt of such Alternative Transaction continues to meet the requirements Proposal and deliver a copy of clause (ii) of this Paragraph 20 and (B) upon execution of definitive documentation relating to a Substitute Transaction, BFE will pay such Alternative Transaction Proposal to the Backstop Parties and their respective Representatives, including Xxxxxx Xxxxx and Milbank; (B) keep the Backstop Parties reasonably informed of the status and terms of any such Alternative Transaction Proposal (including any amendments thereto), the status of any such discussions or negotiations, including any change in the Company’s intentions as previously notified; and (C) use commercially reasonable efforts to respond promptly to reasonable information requests and questions from the Backstop Parties regarding such Alternative Transaction. Notwithstanding anything else contained herein, none of the Company or any of the other Debtors shall enter into any confidentiality agreement with a party in connection with an aggregate break-up fee (to be allocated among Alternative Transaction unless the Company notifies the Backstop Parties in accordance with their Commitment Percentages) a sum in cash equal writing prior to $350,000 (such entry into the “Termination Fee”). For purposes of claritynon-disclosure agreement, the Option Premium shall also remain payable, in addition to the Termination Fee. The proceeds of a Substitute Transaction shall be used, promptly as well as upon consummation of such Substitute Transaction, to (a) first, repay in full all amounts outstanding under the Bridge Loan, (b) second, repay in full all amounts under the Mezzanine Loan Agreement and (c) third, satisfy all obligations under the Cargill Acknowledgement Letterexecution thereof.

Alternative Transactions. Notwithstanding anything to During the contrary in this Letter Agreementperiod commencing on the date hereof and terminating at the entry of the Bidding Procedures Order, BFE Corp. shall be permitted to solicitSeller will not, and Seller will cause Seller directors, officers, employees, representatives and agents not to, directly or indirectly, participate in, initiate in management meetings or facilitate discussions or negotiations withconferences, or provide any information to, any person on site inspections of records or group of persons concerning any alternative equity financing or other transaction that would result in the (a) repayment in full of all amounts outstanding under the Bridge Loan, (b) repayment in full of all amounts under the Mezzanine Loan Agreement and (c) satisfy all obligations under the Cargill Acknowledgement Letter (a “Substitute Transaction”). If, as a result of such activities, the Board of Directors operations of the Company Seller, or (during such period) solicit (other than providing notice in accordance with the “Board”Bidding Procedures Order) any offers from any Person or entity (excluding any Board member that is an affiliate other than Buyer or as required by Order of Greenlightthe Bankruptcy Court) determines in good faith after consultation with outside legal counsel and independent financial advisors that respect to (i) it has any sale of all or a substantial portion of the opportunity Acquired Assets to enter into a Substitute Transaction that will be consummated within a timeframe that is not materially longer Person other than the anticipated timeframe for the Rights Offering and the Concurrent Private Placement but in no event later than February 1, 2011, and Buyer; or (ii) such Substitute Transaction is more favorable to any Alternative Transaction. After the holders of Common Stock (excluding benefits arising to the Backstop Parties by virtue entry of the Backstop CommitmentBidding Procedures Order, the restrictions set forth in the immediately preceding sentence shall no longer be applicable, and Seller shall be free to solicit offers, and participate in management meetings or conferences, or on site inspections of records or operations of the Seller. At all times, Seller shall promptly notify Buyer of the existence of, the identity of the part(ies) than proposing, the Rights Offering and the Concurrent Private Placement (taking into account all the material terms and conditions of such Substitute Transaction that the Board deems relevant includingof, without limitationand promptly provide Buyer with a copy of, any break-up fee provisions, expense reimbursement provisions, conditions to closing and availability competing bid for all or a substantial portion of necessary financing) and is reasonably likely to be consummated prior to February 1, 2011, then the Company shall deliver three (3) business days prior notice to Greenlight of its intention to enter into such Substitute Acquired Assets or for an Alternative Transaction, together with reasonable details a description of any materials furnished to any such alternative buyer (the "No-Shop Provisions"). During the Competitive Bidding Period, Seller will have the responsibility and obligation to respond to any inquiries or offers to acquire the Acquired Assets and assume the Assumed Liabilities including supplying information relating to the Business, the Acquired Assets and the Assumed Liabilities to any prospective purchasers. The Chief Restructuring Advisor to the Seller shall at all times during the Competitive Bidding Period have the right to respond to any inquiries or offers to acquire the Acquired Assets and assume the Assumed Liabilities. Additionally, from the date of this Agreement to the Closing Date, Seller shall promptly consult with Buyer about any material matters concerning the terms Restaurants, the Acquired Assets or the Business, and conditions if any inquiries or proposals (whether written or oral) of the type described in Section 6.4 above are received, Seller shall promptly notify Buyer of such Substitute Transaction. After inquiries and proposals and provide Buyer with, among other items or information requested by Buyer, copies of any correspondence evidencing or regarding such three (3) business day periodinquiries or proposals, (x) the Board shall be permitted to approve the Substitute Transaction, (y) BFE Corp. shall be permitted to enter into such Substitute Transaction and (z) BFE Corp. shall be permitted to terminate this Letter Agreement; so long as in each case (A) the Substitute Transaction continues to meet the requirements of clause (iiname(s) of this Paragraph 20 and (B) upon execution of definitive documentation relating to a Substitute Transaction, BFE will pay to the Backstop Parties an aggregate break-up fee (to be allocated among the Backstop Parties in accordance with their Commitment Percentages) a sum in cash equal to $350,000 (the “Termination Fee”). For purposes of clarityparty or parties making such inquiries or proposals, the Option Premium shall also remain payable, substance of any such inquiries or proposals and the dates that such inquiries and proposals were made to Seller. Seller agrees to cooperate and promptly provide Buyer with such other information requested by Buyer in addition to the Termination Fee. The proceeds of a Substitute Transaction shall be used, promptly upon consummation of connection with any such Substitute Transaction, to inquiries or proposals (a) first, repay in full all amounts outstanding under the Bridge Loan, (b) second, repay in full all amounts under the Mezzanine Loan Agreement and (c) third, satisfy all obligations under the Cargill Acknowledgement Letterwhether written or oral).