EXHIBIT 5.1
KIRKLAND & ELLIS
PARTNERSHIPS INCLUDING PROFESSIONAL CORPORATIONS
Citicorp Center
153 East 53rd Street
New York, New York 10022-4675
212 446-4800
Facsimile:
212 446-4900
May __, 1998
Sealy Mattress Company
Halle Building
10th Floor
1228 Euclid Avenue
Cleveland, Ohio 44115
Re: Offer by Sealy Mattress Company to Exchange its (i) Series B 97/8% Senior
Subordinated Notes due 2007 for any and all its 97/8% Senior Subordinated
Notes due 2007 and (ii) Series B 107/8% Senior Subordinated Discount Notes
due 2007 for any and all its 107/8% Senior Subordinated Discount Notes due
2007
Ladies and Gentlemen:
We are acting as special counsel to Sealy Mattress Company, an Ohio
corporation (the "Company"), in connection with the proposed registration by the
Company of (i) up to $125,000,000 in aggregate principal amount of the Company's
Series B 97/8% Senior Subordinated Notes due 2007 (the "Senior Subordinated
Exchange Notes") and (ii) up to $128,000,000 in aggregate principal amount of
the Company's Series B 107/8% Senior Subordinated Discount Notes due 2007 (the
"Senior Subordinated Discount Exchange Notes" and, together with the Senior
Subordinated Exchange Notes, the "Exchange Notes"), pursuant to a Registration
Statement on Form S-4 originally filed with the Securities and Exchange
Commission (the "Commission") on March 18, 1998 under the Securities Act of
1933, as amended (the "Securities Act") (such Registration Statement, as amended
or supplemented, is hereinafter referred to as the "Registration Statement"),
for the purpose of effecting an exchange offer (the "Exchange Offer") for (i)
the Company's 97/8% Senior Subordinated Notes due 2007 (the "Senior Subordinated
Notes") and (ii) the Company's 107/8% Senior Subordinated Discount Notes due
2007 (the "Senior Subordinated Discount Notes" and, together with the Senior
Sealy Mattress Company
May __, 1998
Page 2
Subordinated Notes, the "Notes"), respectively. The Senior Subordinated Exchange
Notes are to be issued pursuant to the Senior Subordinated Note Indenture (the
"Senior Subordinated Note Indenture"), dated as of December 18, 1997, among the
Company, the guarantors named therein (the "Guarantors"), and The Bank of New
York, as trustee (the "Trustee"), in exchange for and in replacement of the
Company's outstanding Senior Subordinated Notes, of which $125,000,000 in
aggregate principal amount is outstanding. The Senior Subordinated Discount
Notes are to be issued pursuant to the Senior Subordinated Discount Note
Indenture (the "Senior Subordinated Discount Note Indenture" and, together with
the Senior Subordinated Note Indenture, the "Indentures"), dated as of December
18, 1997, between the Company, the Guarantors, and the Trustee, in exchange for
and in replacement of the Company's outstanding Senior Subordinated Discount
Notes, of which $128,000,000 in aggregate principal amount at maturity is
outstanding. The Exchange Notes will be guaranteed on a senior subordinated
basis by the Guarantors (the "Guarantees").
In connection with the Exchange Offer, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of such documents,
corporate records and other instruments as we have deemed necessary for the
purposes of this opinion, including (i) the corporate and organizational
documents of the Company and the Guarantors, (ii) minutes and records of the
corporate proceedings of the Company and the Guarantors with respect to the
issuance of the Exchange Notes, (iii) the Registration Statement and exhibits
thereto and (iv) the Registration Rights Agreement, dated as of December 18,
1997, among the Company, the guarantors named therein, Goldman Sachs & Co., J.P.
Morgan Securities Inc. and BT Alex. Brown Incorporated.
For purposes of this opinion, we have assumed the authenticity of all
documents submitted to us as originals, the conformity to the originals of all
documents submitted to us as copies and the authenticity of the originals of all
documents submitted to us as copies. We have also assumed the genuineness of the
signatures of persons signing all documents in connection with which this
opinion is rendered, the authority of such persons signing on behalf of the
parties thereto other than the Company and the Guarantors, and the due
authorization, execution and delivery of all documents by the parties thereto
other than the Company and the Guarantors. As to any facts material to the
opinions expressed herein which we have not independently established or
verified, we have relied upon statements and representations of officers and
other representatives of the Company, the Guarantors, and others.
Sealy Mattress Company
May __, 1998
Page 3
Based upon and subject to the foregoing qualifications, assumptions and
limitations and the further limitations set forth below, we are of the opinion
that:
(1) The Company is a corporation existing and in good standing under the
General Corporation Law of the State of Ohio.
(2) The issuance of the Exchange Notes has been duly authorized by the
Company.
(3) Each Guarantee has been duly authorized by the respective Guarantor.
(4) When, as and if (i) the Registration Statement shall have become
effective pursuant to the provisions of the Securities Act, (ii) the Indentures
shall have been qualified pursuant to the provisions of the Trust Indenture Act
of 1939, as amended, (iii) the Notes shall have been validly tendered to the
Company, (iv) the Exchange Notes shall have been issued in the form and
containing the terms described in the Registration Statement, the Indentures,
the resolutions of the Company's Board of Directors (or authorized committee
thereof) authorizing the foregoing and any legally required consents, approvals,
authorizations and other order of the Commission and any other regulatory
authorities to be obtained, the Exchange Notes when issued pursuant to the
Exchange Offer will be legally issued, fully paid and nonassessable and will
constitute valid and binding obligations of the Company and the Guarantees will
constitute valid and binding obligations of the Guarantors under the terms and
conditions described in the Registration Statement, the Indentures, the
resolutions of the Guarantors' Board of Directors (or authorized committee
thereof) authorizing the foregoing and any legally required consents, approvals,
authorizations and other order of the Commission and any other regulatory
authorities to be obtained.
Our opinions expressed above are subject to the qualifications that we
express no opinion as to the applicability of, compliance with, or effect of (i)
any bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent
conveyance, moratorium or other similar law affecting the enforcement of
creditors' rights generally, (ii) general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law), (iii)
public policy considerations which may limit the rights of parties to obtain
certain remedies and (iv) any laws except the laws of the State of New York and
the General Corporation Law of the State of Ohio. We advise you that issues
addressed by this letter may be governed in whole or in part by other laws, but
we express no opinion as to whether any relevant difference exists between the
laws upon which our opinions are based and any other laws which may actually
govern. For
Sealy Mattress Company
May __, 1998
Page 4
purposes of the opinion in paragraph 1, we have relied exclusively upon recent
certificates issued by the Ohio Secretary of State, and such opinion is not
intended to provide any conclusion or assurance beyond that conveyed by such
certificates. We have assumed without investigation that there has been no
relevant change or development between the respective dates of such certificates
and the date of this letter.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement. We also consent to the reference to our firm under the
heading "Legal Matters" in the Registration Statement. In giving this consent,
we do not thereby admit that we are in the category of persons whose consent is
required under Section 7 of the Securities Act of the rules and regulations of
the Commission.
We do not find it necessary for the purposes of this opinion, and accordingly
we do not purport to cover herein, the application of the securities or "Blue
Sky" laws of the various states to the issuance of the Exchange Notes.
This opinion is limited to the specific issues addressed herein, and no
opinion may be inferred or implied beyond that expressly stated herein. We
assume no obligation to revise or supplement this opinion should the present
laws of the States of Ohio or New York be changed by legislative action,
judicial decision or otherwise.
This opinion is furnished to you in connection with the filing of the
Registration Statement, and is not to be used, circulated, quoted or otherwise
relied upon for any other purposes.
Yours very truly,
/s/ Kirkland & Ellis
KIRKLAND & ELLIS