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EXHIBIT 5
BASS, BERRY & SIMS PLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
ATTORNEYS AT LAW
KNOXVILLE OFFICE DOWNTOWN OFFICE:
900 SOUTH GAY STREET, SUITE 1700 REPLY TO: AMSOUTH CENTER
KNOXVILLE, TN 37902 AMSOUTH CENTER 315 DEADERICK STREET, SUITE 2700
(865) 521-6200 315 DEADERICK STREET, SUITE 2700 NASHVILLE, TN 37238-3001
NASHVILLE, TN 37238-3001 (615) 742-6200
MEMPHIS OFFICE (615) 742-6200
THE TOWER AT PEABODY PLACE MUSIC ROW OFFICE:
100 PEABODY PLACE, SUITE 950 WWW.BASSBERRY.COM 29 MUSIC SQUARE EAST
MEMPHIS, TN 38103-2625 NASHVILLE, TN 37203-4322
(901) 543-5900 (615) 255-6161
February 2, 2004
O'Charley's Inc.
3038 Sidco Drive
Nashville, Tennessee 37204
Re: Offer for All Outstanding 9% Senior Subordinated Notes Due 2013 of
O'Charley's Inc. in Exchange for 9% Senior Subordinated Notes Due 2013 of
O'Charley's Inc. - Registration Statement on Form S-4
Ladies and Gentlemen:
We have acted as counsel to O'Charley's Inc., a Tennessee corporation
(the "Company"), and the Guarantors (as defined below) in connection with the
public offering of up to $125,000,000 aggregate principal amount of 9% Senior
Subordinated Notes Due 2013 (the "New Notes") of the Company that are to be
unconditionally guaranteed on an unsecured senior subordinated basis (the
"Guarantees") by the subsidiaries of the Company listed on Schedule I attached
hereto (the subsidiary guarantors set forth on Schedule I attached hereto being
collectively referred to herein as the "Guarantors"). The New Notes are to be
issued pursuant to an exchange offer (the "Exchange Offer") in exchange for a
like principal amount and denomination of the Company's issued and outstanding
9% Senior Subordinated Notes due 2013 (the "Old Notes"), as contemplated by the
Registration Rights Agreement, dated as of November 4, 2003 (the "Registration
Rights Agreement"), by and among the Company, the Guarantors, Wachovia Capital
Markets, LLC and Morgan Joseph & Co. Inc. The Old Notes were issued, and the
New Notes will be issued, under an Indenture, dated as of November 4, 2003 (the
"Indenture"), by and among the Company, the Guarantors and The Bank of New
York, as Trustee (the "Trustee").
This opinion is being furnished in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended
(the "Securities Act").
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of (i) the Registration
Statement on Form S-4 of the Company relating to the Exchange Offer, as filed
with the Securities and Exchange Commission (the "Commission") on the date
hereof (such Registration Statement being hereinafter referred to as the
"Registration Statement"); (ii) an executed copy of the Registration Rights
Agreement; (iii) an executed copy of the Indenture (which includes the
Guarantees); (iv) the Form T-1 of the Trustee filed as an exhibit to the
Registration Statement; and (v) the form of the New Notes. We also have
examined and relied upon originals or copies, certified or otherwise identified
to our satisfaction, of such records, documents, certificates and
O'Charley's Inc.
February 2, 2004
Page 2
other instruments as in our judgment are necessary or appropriate in order to
express the opinions hereinafter set forth.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified, facsimile, conformed or photostatic
copies and the authenticity of the originals of such latter documents. In
connection with this opinion, we have assumed that the Registration Statement
will have become effective, and that the New Notes will be issued and sold in
compliance with applicable federal and state securities laws and in the manner
described in the Registration Statement. As to any facts material to the
opinion expressed herein that have not been independently established or
verified, we have relied upon the oral or written statements and
representations of officers and other representatives of the Company, the
Guarantors and others.
Based on the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion that:
1. When the New Notes (in the form examined by us) have been
duly executed and authenticated in accordance with the terms of the Indenture
and have been delivered upon consummation of the Exchange Offer against receipt
of Old Notes surrendered in exchange therefor in accordance with the terms of
the Exchange Offer, the Registration Rights Agreement and the Indenture, the
New Notes will constitute valid and binding obligations of the Company,
entitled to the benefits of the Indenture and enforceable against the Company
in accordance with their terms, except that the enforcement thereof may be
limited by (A) bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or similar laws now or hereafter in effect relating to creditors'
rights generally and (B) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity).
2. When the New Notes have been duly executed and authenticated
in accordance with the terms of the Indenture and have been issued and
delivered upon consummation of the Exchange Offer against receipt of Old Notes
surrendered in exchange therefor in accordance with the terms of the Exchange
Offer, the Registration Rights Agreement and the Indenture, the Guarantees will
constitute the valid and binding obligation of the Guarantors, enforceable
against each such Guarantor in accordance with its terms, except that the
enforcement thereof may be limited by (A) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or similar laws now or
hereafter in effect relating to creditors' rights generally and (B) general
principles of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity).
We assume no obligation to advise you of changes in law or fact (or
the effect thereof on the opinions expressed herein) that hereafter may come to
our attention. The Indenture provides that the New Notes and the Indenture are
governed by the laws of the State of New York, and we have assumed that a court
considering the issue would respect that choice.
O'Charley's Inc.
February 2, 2004
Page 3
We hereby consent to the reference to our law firm in the Registration
Statement under the caption "Legal Matters" and the filing of this opinion with
the Commission as Exhibit 5 to the Registration Statement.
Very truly yours,
/s/ Bass, Berry & Sims PLC
Bass, Berry & Sims PLC
SCHEDULE I
LIST OF GUARANTORS
JURISDICTION OF
NAME ORGANIZATION AND ENTITY TYPE
- ---- ----------------------------
Air Travel Services, Inc. Tennessee corporation
DFI, Inc. Tennessee corporation
O'Charley's Finance Company, Inc. Tennessee corporation
O'Charley's Management Company, Inc. Tennessee corporation
O'Charley's Restaurant Properties, LLC Delaware limited liability company
O'Charley's Service Company, Inc. Tennessee corporation
O'Charley's Sports Bar, Inc. Alabama corporation
OCI, Inc. Delaware corporation
OPI, Inc. Colorado corporation
Stoney River Legendary Management, L.P. Georgia limited partnership
Stoney River, LLC Delaware limited liability company
Stoney River Management Company, Inc. Delaware corporation
99 Commissary, LLC Delaware limited liability company
99 Restaurants, LLC Delaware limited liability company
99 Restaurants of Boston, LLC Delaware limited liability company
99 Restaurants of Massachusetts, a Massachusetts Business Trust Massachusetts business trust
99 Restaurants of Vermont, LLC Vermont limited liability company
99 West, Inc. Massachusetts corporation