(Date
of Event which Requires Filing of this Statement)
If
the filing person has previously filed a statement on Schedule 13G to report the
acquisition that is the subject of this Schedule 13D and is filing this schedule
because of Sections 240.13d 1(e), 240.13d 1(f) or 240.13d 1(g), check the
following box. o
The
information required on the remainder of this cover page shall not be deemed to
be “filed” for the purpose of Section 18 of the Securities Exchange
Act of 1934 (“Act”) or otherwise
subject to the liabilities of that section of the Act but shall be subject to
all other provisions of the Act.
Explanatory
Note
This statement on Schedule 13D/A is
being filed as Amendment No. 5 to the statement on Schedule 13D originally filed
with the Securities and Exchange Commission on November 17, 2006 and as amended
on December 11, 2006, July 24, 2007, August 6, 2007 and February 2,2009. Defined terms used and not otherwise defined herein shall have
the meanings ascribed to such terms in the originally filed Schedule 13D, as
amended.
Item
4. Purpose of Transaction.
The
disclosure in Item 4 is hereby amended and restated in its
entirety:
The
Reporting Persons acquired the Original Warrants in connection with the
commitments made and loans provided under the Credit Agreement. The
Reporting Persons acquired the Additional Warrants as a result of the failure of
USEY to provide a satisfactory USEB guaranty as required under the Credit
Agreement. The Warrants were acquired for investment purposes. The
Holders have the right to elect to either designate an observer with respect to
the board of directors of USEY (the “Board”) or designate
a nominee to the Board.
Consistent
with the terms of the Credit Agreement, the Reporting Persons have had, and may
have in the future, discussions with management of USEY and may make suggestions
concerning USEY’s operations, prospects, business and financial strategies,
assets and liabilities, business and financing alternatives and such other
matters as the Reporting Persons may deem relevant to their extension of credit.
Each Reporting Person expects that it will, from time to time, review its
investment position in USEY and may, depending on market and other conditions,
choose to exercise the Warrants to obtain the underlying shares of USEY Common
Stock.
Whether
the Reporting Persons exercise the Warrants, purchase any additional securities
of USEY, or dispose of any securities of USEY, and the amount and timing of any
such transactions, will depend upon the Reporting Persons' individual continuing
assessments of pertinent factors, including the availability of securities of
USEY for purchase at particular price levels, USEY’s and the particular
Reporting Person's business and prospects, other business investment
opportunities available to the particular Reporting Person, economic conditions,
stock market conditions, money market conditions, the attitudes and actions of
management of USEY, the availability and nature of opportunities to dispose of
the particular Reporting Person's interest in USEY and other plans and
requirements of the particular Reporting Person. Depending upon its
individual assessments of these factors from time to time, each Reporting Person
may change its present intentions as stated above, including determining to
acquire additional securities of USEY (by means of open market or privately
negotiated purchases) or to dispose of some or all of the securities of USEY
held by or under the control of such Reporting Person. In addition,
each Reporting Person may from time to time enter into equity swap or other
derivative transactions with respect to its investment in the securities of
USEY. Each Reporting Person may have discussions with USEY or take
actions with respect to the covenants and agreements, and any future draw-downs,
under the Credit Agreement and related documents with respect to the Credit
Agreement, and may waive or fail to waive any covenants and take actions,
including calling a default, with respect to its commitments under the Credit
Agreement in its sole discretion.
In
light of announcements made by USEY in June 2008 with respect to its liquidity
and financial position, in July 2008 with respect to its decision to seek
independent third party financial advisors for purposes of assisting the Board
in its evaluation of potential refinancing or restructuring transactions, as
well as other strategic alternatives available to USEY and in August 2008 with
respect to the filing of plans of reorganization and liquidation with the United
States Bankruptcy Court by USEY and two if its subsidiaries, the Reporting
Persons have continued to evaluate various alternatives with respect to USEY and
its subsidiaries. Except as described herein, at the present time the
Reporting Persons have no plans or proposals which relate to or would result in
(a) the acquisition by any person of additional securities of USEY, or the
disposition of securities of USEY, (b) an extraordinary corporate transaction,
such as a merger, reorganization or liquidation, involving USEY or any of its
subsidiaries, (c) a sale or transfer of a material amount of the assets of USEY
or any of its subsidiaries, (d) any change in the present Board or management of
USEY, including any plans or proposals to change the number or term of directors
or to fill any existing vacancies on the Board, (e) any material change in the
present capitalization or dividend policy of USEY, (f) any other material change
in USEY's business or corporate structure, (g) changes in USEY's charter, bylaws
or instruments corresponding thereto or other actions which may impede the
acquisition of control of USEY by any person, (h) a class of securities of USEY
being delisted from a national securities exchange
or
ceasing to be authorized to be quoted in an inter-dealer quotation system of a
registered national securities association, (i) a class of equity securities of
USEY becoming eligible for termination of registration pursuant to Section
12(g)(4) of the Act or (j) any action similar to any of those enumerated
above. The Reporting Persons, however, expect to evaluate on an
ongoing basis USEY's and its subsidiaries' financial condition, business,
operations and prospects, the market price of USEY Common Stock, conditions in
the securities markets generally, general economic and industry conditions and
other factors it deems appropriate. Each of the Reporting Persons
reserves the right to propose or participate in future transactions which may
result in one or more of the foregoing actions, including but not limited to, an
extraordinary corporate transaction, such as a merger, reorganization or
liquidation, sale of a material amount of assets of the USEY or it subsidiaries,
or other transactions which might have the effect of causing the USEY Common
Stock to become eligible for termination of registration under Section 12 (g) of
the Securities and Exchange Act of 1934 (the "Act").
As
part of the evaluation by the Reporting Persons of alternatives with respect to
USEY and its subsidiaries, affiliates of the Reporting Persons are engaged in
discussions regarding potential plans of reorganization and liquidation
regarding USEY and its subsidiaries. In connection with such ongoing
evaluation, on January 23, 2009, Silver Point Finance, LLC (“SPF”), an affiliate
of the Reporting Persons, entered into an Asset Purchase Agreement (the “Agreement”) with U.S.
Energy Biogas Corp. ("USEB"), a
wholly-owned subsidiary of USEY, and certain subsidiaries of USEB (collectively,
the “Sellers”),
pursuant to which SPF or its permitted designees agreed to purchase
substantially all of USEB’s assets in exchange for a combination of cash and the
assumption of certain liabilities of USEB having a combined value of $94.5
million. The Agreement supersedes a letter of intent submitted by SPF
on August 3, 2007 relating to its interest in acquiring 100% of the common stock
of USEB. The description of the terms and conditions of the Agreement
is qualified in its entirety by reference to the full text of the Agreement, a
copy of which is attached as Exhibit B to Amendment #4 to Schedule 13D filed on
February 2, 2009 (“Amendment #4”) and is
hereby incorporated by reference into this Item 4.
On
January 23, 2009, in connection with the Agreement, SPF entered into a letter
agreement (the “USEY
Letter Agreement”) with USEY in which, subject to approval from the
bankruptcy court, SPF or its permitted designees will pay $100,000 in cash in
exchange for (i) a release of SPF and its affiliates, (ii) conveyance of certain
partnership interests, and (iii) assignment to SPF of an environmental liability
insurance policy held for the benefit of USEB. The description of the
terms and conditions of the USEY Letter Agreement is qualified in its entirety
by reference to the full text of the USEY Letter Agreement, a copy of which is
attached as Exhibit C to Amendment #4 and is hereby incorporated by reference
into this Item 4.
On
January 23, 2009, in connection with the Agreement, USEB and its other
subsidiaries party to the Agreement filed a voluntary petition for
reorganization relief under Chapter 11 of the United States Bankruptcy
Code.
On
March 13, 2009, the Bankruptcy Court entered final orders for the transactions
contemplated by the Agreement and the USEY Letter Agreement. On March27, 2009, the Sellers and certain designees of SPF consummated the transactions
contemplated in the Agreement and the USEY Letter Agreement.
Item
7. Material to be Filed as Exhibits.
Exhibit
A
Agreement
Regarding the Joint Filing of Schedule 13D/A, dated as of April 3, 2009,
by and among Silver Point Capital Management, LLC, Edward A. Mulé, Robert
J. O'Shea, Silver Point Capital, L.P., Silver Point Capital Fund, L.P.,
SPCP Group, LLC and SPCP Group III,
LLC.
SIGNATURES
After reasonable inquiry and to the
best of our knowledge and belief, the undersigned certify that the information
set forth in this statement is true, complete and correct.
AGREEMENT
REGARDING THE JOINT FILING OF SCHEDULE 13D/A
The
undersigned hereby agree as follows:
(i)
Each of them is individually eligible to use the Schedule 13D/A to which this
Exhibit is attached, and such Schedule 13D/A is filed on behalf of each of them;
and
(ii)
Each of them is responsible for the timely filing of such Schedule 13D/A and any
amendments thereto, and for the completeness and accuracy of the information
concerning such person contained therein; but none of them is responsible for
the completeness or accuracy of the information concerning the other persons
making the filing, unless such person knows or has reason to believe that such
information is inaccurate.
