Exhibit 5.2
[LETTERHEAD OF ARTER & HADDEN LPP]
August 9, 1999
State Street Bank and Trust Company,
as Trustee
225 Franklin Street
Boston, Massachusetts 02110
Re: Business Sound, Inc.
--------------------
Ladies and Gentlemen:
We have acted as special Ohio counsel to Business Sound, Inc., an Ohio
corporation ("BSI"), in connection with its obligations under the terms of that
certain Indenture (the "Indenture"), dated as of March 18, 1999, among Muzak
LLC, a Delaware limited liability company ("Muzak"), Muzak Finance Corp., a
Delaware corporation ("Finance" and together with Muzak, the "Issuers"), BSI and
each of the other Guarantors (as defined therein) a party thereto (together with
BSI, the "Guarantors") and State Street Bank and Trust Company, in its capacity
as Trustee thereunder (the "Trustee"). The Issuers, Guarantors and Trustee are
sometimes collectively referred to herein as the "Transaction Parties".
Capitalized terms used but not defined herein have the same meanings as in the
Indenture.
In connection with our engagement, we have reviewed the following
documents:
a. the Indenture;
b. the notation of Guarantee executed by BSI and certain other
Guarantors as contemplated under the terms of Section 10.08 of
the Indenture (the "Notation");
c. BSI's Articles of Incorporation and Regulations; and
e. such other agreements, documents, certificates and records as we
have deemed appropriate for the purposes of this opinion letter.
The documents enumerated in items (a) and (b), above, are collectively
referred to as the "Guarantee Documents."
State Street Bank and Trust Company,
as Trustee
August 9, 1999
Page 2
In our review we have assumed the genuineness of all signatures (other than
those of the officers of BSI), the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as certified or photostatic copies and the authenticity of the originals of
such copies, the accuracy and completeness of governmental records, and the
legal capacity of natural persons. As to questions of fact we have relied upon
the accuracy of certain matters which have been certified as being true and
correct by officers of BSI and public officials. All assumptions and statements
of reliance as to factual matters herein have been made without any independent
investigation or verification on our part, and we express no opinion with
respect to the subject matter of such assumptions or items relied upon. We have
also assumed that each of the Transaction Parties (other than BSI) has the power
and authority to enter into and perform its obligations under, and has duly
authorized, executed and delivered, the Guarantee Documents to which it is a
party and that such Guarantee Documents constitute valid and binding obligations
of such Transaction Parties, enforceable against them in accordance with their
respective terms.
The law covered by this opinion letter is limited to the Federal laws and
regulations of the United States and the laws and regulations of the State of
Ohio. We note that the Guarantee Documents provide that they are to be governed
by, and construed in accordance with, the laws of the State of New York.
Accordingly, for purposes of the opinions herein expressed, we have assumed that
the laws of the State of New York will apply and that those laws are identical
to the laws of the State of Ohio.
Based on the foregoing and subject to the qualifications, limitations,
exceptions and assumptions set forth or referred to herein, we are of the
opinion that:
1. BSI is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Ohio.
2. BSI has the requisite corporate power and authority to execute and
deliver the Guarantee Documents and to perform its obligations thereunder.
3. The execution and delivery of the Guarantee Documents by BSI, and the
performance of its obligations thereunder, has been duly authorized by BSI.
4. The Guarantee Documents constitute legal, valid and binding obligations
of BSI, enforceable against BSI in accordance with their terms.
State Street Bank and Trust Company
as Trustee
August 9, 1999
Page 3
The opinions set forth above are subject to the following assumptions,
qualifications and limitations:
(A) We bring to your attention the fact that, as otherwise noted above, the
Guarantee Documents purport to be governed by, and to be construed in accordance
with, the laws of the State of New York. We render no opinion that an Ohio
Court, or a Federal Court of the United States applying the laws of the State of
Ohio, would enforce such choice of law provisions in any case where the
application of the laws of the State of New York would render a result which
would be contrary to a fundamental policy of Ohio law.
(B) Our opinions relating to validity, binding effect, and enforceability of
the Guarantee Documents, and the validity and enforceability of the rights in
favor of the Trustee and any Holders or Noteholders thereunder, are subject to
(i) limitations imposed by any applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium and similar laws affecting the
validity or enforcement of creditors' rights generally, (ii) the effect of
general principles of equity (regardless of whether considered in a proceeding
in equity or at law) and (iii) standards which otherwise require that rights
and remedies be exercised reasonably and in good faith.
(C) We render no opinion on the enforceability of any provision of the
Guarantee Documents which (i) purports to require any party thereto to pay any
attorneys fees or paralegal fees which may be incurred by any other party in
connection with any action to enforce any rights or remedies thereunder, (ii)
purports to waive the right of any party thereto to assert any claim against any
other party based on facts not in existence, or matters not otherwise
contemplated, at the time of executing such Guarantee Documents, (iii) limits
the availability of a remedy under certain circumstances where another remedy
has been elected, (iv) requires any party thereto to indemnify any other party
for liability for its own action or inaction, to the extent such action or
inaction involves gross negligence, recklessness, willful misconduct or unlawful
conduct or (v) attempts to limit the enforceability of oral waivers or
modifications or provide that a course of performance will not operate as a
waiver.
(D) We express no opinion as to the enforceability of any right or remedy
which might exist in favor of the Trustee or any Holder or Noteholder under the
terms of the Guarantee Documents to the extent that the unenforceability of such
right or remedy (i) does not in any material manner adversely affect the
practical realization of the rights and benefits intended to be provided to such
party, or parties, under the Guarantee Documents taken as a whole or (ii) can
otherwise be readily remedied without significant delay, expense on loss to such
party or parties.
State Street Bank and Trust Company,
as Trustee
August 9, 1999
Page 4
This opinion letter is delivered to you solely for your use in
connection with the transactions contemplated by the Guarantee Documents and may
not be disclosed or delivered to any other person or entity, or relied upon by
you or any other person or entity (other than the Holders or Noteholders), for
any other purpose whatsoever, without in each instance our prior written
consent.
However, Kirkland & Ellis may, to the same extent as if it were an
addressee hereof, rely upon this opinion letter in issuing any opinions which it
determines appropriate in connection with or relating to, the Guarantee
Documents or any of the transactions contemplated by the Guarantee Documents.
We do not undertake to advise you of matters which may come to our
attention subsequent to the date hereof and which may affect our opinions
expressed herein.
We bring to your attention the fact that our opinions set forth herein
are expressions of professional judgment and not a guarantee of a result.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission pursuant to the Securities Act of 1933 (the "Securities
Act") as Exhibit 5.2 to the Registration Statement on Form S-4 (file no. 333-
78571) of Muzak, Finance and the Guarantors with respect to the exchange offer
for the 9 7/8% Senior Subordinated Notes due 2009 of Muzak and Finance. In so
doing, we do not admit that we are experts whose consent is required pursuant to
Section 7 of the Securities Act or provided pursuant to Section 11(a) of the
Securities Act.
Very truly yours,
/s/ Arter & Hadden LLP
ARTER & HADDEN LLP