EXHIBIT 5.1
KIRKLAND & ELLIS
PARTNERSHIPS INCLUDING PROFESSIONAL CORPORATIONS
200 East Randolph Drive DRAFT
Chicago, Illinois 60601
To Call Writer Direct: 312 861-2000 Facsimile:
312 861-2000 312 861-2200
September 13, 1999
Muzak LLC,
Muzak Finance Corp.
Muzak Capital Corporation
MLP Environmental Music, LLC
Business Sound, Inc.
Muzak Holdings LLC
2901 Third Avenue, Suite 400
Seattle, WA 98121
Re: Muzak LLC,
Muzak Finance Corp.
Muzak Capital Corporation
MLP Environmental Music, LLC
Business Sound, Inc.
BI Acquisition, LLC
Muzak Holdings LLC
Registration Statement on Form S-4
Registration No. 333-78571
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Ladies and Gentlemen:
We are issuing this opinion letter in our capacity as special legal counsel
to Muzak LLC, a Delaware limited liability company ("Muzak"), and Muzak Finance
Corp., a Delaware corporation ("Muzak Finance" and, together with Muzak, the
"Issuers") and Muzak Capital Corporation, a Delaware corporation ("Muzak
Capital"), MLP Environmental Music, LLC, a Washington corporation, ("MLP
Environmental"), Business Sound, Inc., an Ohio corporation ("Business Sound"),
BI Acquisition, LLC, a Delaware limited liability company ("BI Acquisition") and
Muzak Holdings LLC, a Delaware limited liability company ("Muzak Holdings", and,
together with Muzak Capital, MLP Environmental, Business Sound and BI
Acquisition, the "Guarantors" and, together with the Issuers, the
"Registrants"), in connection with the proposed registration by the Issuers of
up to $115,000,000 in aggregate principal amount of the Issuers' 9 7/8% Series B
Senior Subordinated Notes due 2009 (the "Exchange Notes"), pursuant to a
Registration Statement on Form
KIRKLAND & ELLIS
Muzak LLC
Page 2
S-4 (Registration No. 333-78571) originally filed with the Securities and
Exchange Commission (the "Commission") on May 17, 1999, under the Securities Act
of 1933, as amended (the "Act") (such Registration Statement, as amended or
supplemented, is hereinafter referred to as the "Registration Statement"). The
obligations of Muzak under the Exchange Notes will be guaranteed by the
Guarantors (the "Guarantees"). The Exchange Notes and the Guarantees are to be
issued pursuant to the Indenture (as supplemented, the "Indenture"), dated as of
March 18, 1999, among Muzak and Muzak Finance, as issuers, the Guarantors, and
State Street Bank and Trust Company, as trustee. The Exchange Notes and the
Guarantees are to be issued in exchange for and in replacement of the Issuers'
outstanding 9 7/8% Senior Subordinated Notes due 2009 (the "Old Notes"), of
which $115,000,000 in aggregate principal amount is outstanding.
In that connection, 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 Certificate of Incorporation and By-Laws or limited
liability company agreement, as applicable, of the Registrants, (ii) minutes and
records of the corporate or limited liability company proceedings of the
Registrants with respect to the issuance of the Exchange Notes and the
Guarantees, (iii) the Registration Statement, and (iv) the Registration Rights
Agreement, dated as of March 18, 1999, among Muzak, Muzak Finance, the
Guarantors, CIBC Oppenheimer Corp. and Goldman, Sachs & Co.
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 Registrants and the due authorization, execution
and delivery of all documents by the parties thereto other than the Registrants.
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 Registrants and
others. In rendering the opinion below regarding Business Sound, we have relied
on the opinion of Arter & Hadden LLP, which is filed as Exhibit 5.2 to the
Registration Statement. In rendering the opinion below regarding MLP
Environmental, we have relied on the opinion of Heller Erhman White &
McAuliffe, which is filed as Exhibit 5.3 to the Registration Statement.
KIRKLAND & ELLIS
Muzak LLC
Page 3
Our opinion expressed below is 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, the
General Corporation Law of the State of Delaware and the Delaware case law
decided thereunder, the Limited Liability Company Act of the State of Delaware
and the federal laws of the United States of America.
Based upon and subject to the assumptions, qualifications, assumptions and
limitations and the further limitations set forth below, we are of the opinion
that when (i) the Registration Statement becomes effective, (ii) the Indenture
has been duly qualified under the Trust Indenture Act of 1939, as amended, and
(iii) the Exchange Notes has been duly executed and authenticated in accordance
with the provisions of the Indenture and duly delivered to the purchasers
thereof in exchange for the Old Notes, the Exchange Notes and the Guarantees
will be validly issued and binding obligations of the Registrants.
We hereby consent to the filing of this opinion with the commission 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 Act or the rules and
regulations of the Commission.
KIRKLAND & ELLIS
Muzak LLC
Page 4
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 New York or Delaware or the federal law of the United
States 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 purpose.
Sincerely,
/s/ Kirkland & Ellis
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Kirkland & Ellis