O CHARLEYS INC
EX-10.12 REVOLVING LOAN AGREEMENT
<DOCUMENT>
<TYPE>EX-10.12
<SEQUENCE>13
<FILENAME>g91871exv10w12.txt
<DESCRIPTION>EX-10.12 REVOLVING LOAN AGREEMENT
<TEXT>
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                                                                   EXHIBIT 10.12

                            REVOLVING LOAN AGREEMENT

         THIS REVOLVING LOAN AGREEMENT ("Agreement") is made this 8th day of
November, 2004, by and between Wi-Tenn Restaurants, LLC, a Delaware limited
liability company ("Borrower") and O'CHARLEY'S INC., a Tennessee corporation
("Lender").

                              W I T N E S S E T H:

         WHEREAS, Borrower has been formed for the purpose of owning and
operating O'Charley's restaurants in accordance with the terms of the Limited
Liability Company Agreement dated November 8, 2004 (the "LLC Agreement");

         WHEREAS, the Borrower has obtained (or may obtain in the future) a
franchise from the Lender for the purpose set forth above; and

         WHEREAS, pursuant to the LLC Agreement, Lender has agreed to make
available to Borrower a revolving line of credit, in the maximum principal
amount of SEVEN HUNDRED FIFTY THOUSAND AND NO/100THS DOLLARS ($750,000) (the
"Loan") on the terms hereinafter set forth;

         NOW, THEREFORE, for and in consideration of the foregoing and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrower and Lender hereby agree as follows:

         1. The Loan.

                  (a) Note. The Loan shall be evidenced by a Master Secured
         Promissory Note of even date herewith in the maximum principal amount
         of $750,000, made and executed by Borrower and payable to Lender, in
         form and substance satisfactory to Lender (said Master Secured
         Promissory Note, as well as any and all modifications, extensions and
         renewals thereof are hereinafter collectively referred to as the
         "Note").

                  (b) Purpose. The purpose of the Loan shall be to provide
         working capital to Borrower on a revolving basis in accordance with the
         terms of the LLC Agreement for the establishment and operation of the
         O'Charley's restaurants in accordance with the Pre-Opening Budget (as
         defined in the LLC Agreement) and the Operating Budget (as defined in
         the LLC Agreement). The proceeds of the Loan shall not be used for any
         other purpose.

                  (c) Security. The Loan shall be secured by (i) a Security
         Agreement of even date herewith granting Lender a lien in certain
         collateral described therein (the "Security Agreement"), and (ii) one
         or mortgages, deeds to secure debt or deeds of trust from Borrower for
         the use and benefit of Lender covering real property of the Borrower
         (individually and collectively, the "Security Instrument"; this
         Agreement, the Note, the Security Agreement, the Security Instrument
         and any other documents now or hereafter

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         executed in connection with the Loan, as the same may be amended or
         modified from time to time, are hereinafter collectively referred to as
         the "Loan Documents").

                  (d) Advances. So long as no Event of Default exists hereunder,
         nor any event with which with the giving of notice, passage of time or
         both would constitute an Event of Default hereunder, upon the terms and
         conditions herein set forth and in accordance with and subject to the
         terms of the LLC Agreement, Lender will make advances (each an
         "Advance") under the Loan to Borrower at Borrower's request for the
         purposes set forth in Section 1(b), in an aggregate amount outstanding
         at any one time not to exceed the maximum principal amount of the Loan.
         Each Advance shall be in a minimum amount of $5,000.

                  (e) Notice and Manner of Borrowing. Borrower shall give Lender
         at least five (5) Business Days' written or telegraphic notice
         (effective upon receipt) of any Advance under this Agreement,
         specifying the date and amount thereof. Not later than 3:00 p.m.
         (Nashville, Tennessee time) on the date of such Advance and upon
         fulfillment of the applicable conditions set forth in Section 1 (f),
         Lender shall make such Advance available to the Borrower in immediately
         available funds.

                  (f) Effect of Request for Advance. Each request by Borrower
         for an Advance shall constitute an affirmation by Borrower that such
         Advance is for the purposes set forth in Section 1(b) and that the
         representations and warranties in Section 2 of this Agreement remain
         true and correct on and as of the date of such request.

         2. Representations and Warranties. Borrower hereby represents and
warrants to Lender as follows:

                  (a) Corporate Status. Borrower is a limited liability company
         duly organized, validly existing and in good standing under the laws of
         the State of Delaware and is duly qualified to do business and in good
         standing in each state in which a failure to be so qualified would have
         a material adverse effect on Borrower's business. Borrower has the
         limited liability company power to own and operate its properties, to
         carry on its business as now conducted and to enter into and perform
         its obligations under this Agreement and the other Loan Documents to
         which it is a party.

                  (b) Authorization. Borrower has full legal right, power and
         authority to conduct its business and affairs in the manner
         contemplated by the Loan Documents and to enter into and perform its
         obligations thereunder without the consent of any other person, firm,
         governmental agency or legal entity.

                  (c) Other Agreements. The transactions hereby contemplated
         will not result in a breach of or constitute a default under any other
         agreement to which Borrower is party. Borrower is not in breach of or
         in default under any Franchise Agreement (as defined in the LLC
         Agreement) or the Development Agreement (as defined in the LLC
         Agreement).

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                  (d) Litigation. There is no litigation or proceeding pending
         against Borrower, nor to the knowledge of the Borrower threatened,
         which, if decided adversely to Borrower would have a material adverse
         effect upon its financial condition or business.

                  (e) Financial Statements. The financial statements of Borrower
         heretofore delivered to Lender are true and correct in all respects,
         have been prepared in accordance with generally accepted accounting
         principles consistently applied, and fairly present the financial
         conditions of Borrower as of the dates thereof. No material adverse
         change has occurred in the financial condition of Borrower since the
         dates thereof.

                  (f) Compliance with Law. Borrower has obtained all necessary
         licenses, permits, governmental approvals and authorizations necessary
         or proper in order to conduct its business and affairs as heretofore
         conducted and as hereafter intended to be conducted and is in
         compliance with all laws, regulations, decrees and orders applicable to
         it.

                  (g) Taxes. Borrower has filed all required federal, state and
         local tax returns and has paid all taxes as shown on such returns as
         they have become due and have paid all other taxes, fees or other
         charges imposed on it prior to delinquency.

                  (h) Environmental Matters. Borrower represents and warrants to
         Lender as follows:

                           (i) All of Borrower's property is being operated by
                  Borrower in full compliance with all applicable environmental
                  laws, and Borrower has obtained, maintained and is in good
                  standing under all approvals, consents, certificates, licenses
                  and permits required by all applicable environmental laws with
                  respect to its property.

                           (ii) All of Borrower's property is free of all
                  hazardous wastes, and is free of all hazardous materials other
                  than those maintained therein or thereon in full compliance
                  with all applicable environmental laws. Borrower has not
                  caused or permitted any of its property to be used to
                  generate, manufacture, refine, transport, treat, store,
                  handle, dispose, transfer, produce or process hazardous
                  materials except in full compliance with all applicable
                  environmental laws.

                           (iii) Borrower has not received notice, and has no
                  knowledge, of any noncompliance with or violation of any
                  environmental laws with respect to any of its property or its
                  business.

         3. Covenants and Agreements. Borrower covenants and agrees during the
term of this Agreement as follows:

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                  (a) Payment of Obligations. Borrower shall pay the
         indebtedness evidenced by the Note according to the tenor thereof, and
         shall timely pay or perform, as the case may be, all of its other
         obligations to Lender.

                  (b) Further Assurances. Borrower will take all actions
         requested by Lender to create and maintain in Lender's favor valid
         liens and/or perfected security interests in any collateral for the
         Loan.

                  (c) Financial Statements. Borrower shall furnish to Lender (or
         cause to be furnished to Lender) the following:

                           (i) financial statements for each fiscal year within
                  ninety (90) days after the end of such fiscal year, and
                  accompanied by a certificate of the President of Borrower,
                  stating that to the best of the knowledge of such officer,
                  Borrower has kept, observed, performed and fulfilled each
                  covenant, term and condition of this Agreement and the other
                  Loan Documents during the preceding fiscal year and that no
                  Event of Default hereunder has occurred and is continuing (or
                  if an Event of Default has occurred and is continuing,
                  specifying the nature of same, the period of existence of same
                  and the action Borrower proposes to take in connection
                  therewith (a "Compliance Certificate");

                           (ii) quarterly financial statements within thirty
                  (30) days after the end of each quarterly period of Borrower's
                  fiscal year, accompanied by a Compliance Certificate with
                  respect to such quarterly period; and

                           (iii) monthly financial statements within twenty (20)
                  days after the end of each calendar month, accompanied by a
                  Compliance Certificate with respect to such calendar month.

                           In addition, Borrower shall promptly furnish Lender
                  any other financial data Lender may reasonably request. All
                  such financial statements shall be prepared in conformity with
                  generally accepted accounting principles consistently applied
                  and shall be in form satisfactory to Lender.

                  (d) Insurance. Borrower shall maintain insurance coverage in
         amounts and of types satisfactory to Lender, including but not limited
         to insurance against loss by fire or other hazards included in the term
         "Extended Coverage" and workman's compensation insurance in such
         amounts as Lender may from time to time reasonably require. All such
         policies of insurance shall provide that such insurance shall be
         payable to Borrower and Lender as their respective interests may
         appear, and that at least thirty (30) days' prior written notice of
         cancellation or modification of the policy shall be given to Lender by
         the insurer.

                  (e) Taxes. Borrower shall file all required federal, state and
         local tax returns and pay all taxes as shown on such returns as they
         become due, and shall pay all other taxes, fees or other charges
         imposed on it prior to delinquency.

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                  (f) Existence. Borrower shall maintain its limited liability
         company existence in good standing in the state of its organization and
         its qualification in good standing as a foreign limited liability
         company in any jurisdiction in which such qualification is necessary
         pursuant to applicable law.

                  (g) Compliance with Law and Other Agreements. Borrower shall
         maintain its business operations and property owned or used in
         connection therewith in compliance with (a) all applicable federal,
         state and local laws, regulations and ordinances governing such
         business operations in the use and ownership of such property, and (b)
         all agreements, licenses, franchises, indentures and mortgages to which
         Borrower is a party or by which Borrower or any of its properties is
         bound, including each Franchise Agreement, the Development Agreement
         and the LLC Agreement.

                  (h) Notice of Default. Borrower shall give written notice to
         Lender of the occurrence of any default under this Agreement or any
         other Loan Documents promptly upon the occurrence thereof.

                  (i) Notice of Litigation. Borrower shall give notice in
         writing to Lender of any action, suit or proceeding wherein the amount
         in issue is in excess of $10,000 instituted by any persons whomsoever
         against any Borrower or any dispute between Borrower on the one hand
         and any governmental regulatory body on the other hand in which dispute
         might interfere with the normal operations of Borrower.

                  (j) Mergers, Consolidations, Acquisitions and Sales. Without
         the express prior written consent of Lender, which may be denied in
         Lender's sole discretion, Borrower shall not (i) be a party to any
         merger, consolidation or corporate reorganization, nor (ii) purchase or
         otherwise acquire all or substantially all of the assets or stock of,
         or any partnership or joint venture interest in, or any other person,
         firm or entity, nor (iii) sell, transfer, convey or grant a security
         interest in or lease all or any substantial part of its assets, nor
         (iv) create any subsidiaries nor convey any of its assets to any
         subsidiary.

                  (k) Management, Ownership. Borrower shall not permit any
         change in the ownership, or executive management of Borrower without
         the prior written consent of Lender. The ownership and executive
         management of Borrower are material factors in Lender's willingness to
         institute and maintain a lending relationship with Borrower.

                  (l) Guaranties; Loans. Borrower shall not guarantee nor be
         liable in any manner, whether directly or indirectly, or become
         contingently liable after the date of this Agreement in connection with
         the obligations or indebtedness of any person or persons whomsoever,
         except for the indorsement of negotiable instruments payable to
         Borrower for deposit or collection in the ordinary course of business.
         Borrower shall not make any loan, advance or extension of credit to any
         person other than in the normal course of its business.

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                  (m) Debt. Without the express prior written consent of Lender,
         which Lender may withhold in its sole discretion, Borrower shall not
         create, incur, assume or suffer to exist indebtedness of any
         description whatsoever other than the indebtedness evidenced by the
         Note, trade accounts payable and accrued expenses incurred in the
         ordinary course of business and the indorsement of negotiable
         instruments payable to Borrower for deposit or collection in the
         ordinary course of business and a loan in the maximum principal amount
         of $2,500,000, to be made by GE Capital Franchise Finance Corporation,
         a Delaware corporation ("GECFFC"), as lender, to Borrower, as borrower,
         evidenced by one or more promissory notes from Borrower to GECFFC, for
         the purpose of constructing or acquiring an O'Charley's restaurant, all
         upon terms and conditions reasonably acceptable to Lender (the "GE
         Loan").

                  (n) Environmental Matters.

                           (i) Borrower will cause all of its property to remain
                  free of all hazardous wastes, and to remain free of all
                  hazardous materials other than those maintained therein or
                  thereon in full compliance with all applicable environmental
                  laws. Borrower will not cause or permit any of its property to
                  be used to generate, manufacture, refine, transport, treat,
                  store, handle, dispose, transfer, produce or process hazardous
                  materials except in full compliance with all applicable
                  environmental laws.

                           (ii) Borrower will notify Lender immediately if it
                  receives any notice or obtains knowledge of any noncompliance
                  with or violation of any environmental laws with respect to
                  any of its property or its business.

                           (iii) In the event that hazardous materials unrelated
                  to Borrower's business, or hazardous wastes, are discovered on
                  or are brought onto any of Borrower's property, Borrower will
                  cause such hazardous materials or hazardous wastes to be
                  removed and disposed of promptly and in full compliance with
                  all applicable environmental laws. Borrower will provide
                  Lender prior written notice of such removal and disposal
                  actions.

                           (iv) Borrower will comply with all applicable
                  environmental laws in all jurisdictions in which Borrower
                  operates, now or in the future, and will comply with all
                  environmental laws that in the future become applicable to its
                  property or business.

         4. Default and Remedies.

                  (a) Events of Default. The occurrence of any of the following
         shall constitute an Event of Default hereunder:

                           (i) Default in the payment of principal of or
                  interest on the indebtedness evidenced by the Note;

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                           (ii) Any misrepresentation by Borrower as to any
                  matter hereunder or under any of the other Loan Documents or
                  delivery of any statement, notice or writing to Lender that is
                  untrue in any respect;

                           (iii) Failure of Borrower to perform any of its
                  obligations under this Agreement, the Note or any other Loan
                  Documents or any default or event of default shall occur under
                  any of the other Loan Documents;

                           (iv) A default or event of default, shall occur under
                  the GE Loan;

                           (v) Any default or event of default, or event which
                  with the giving of notice, passage of time or both would
                  constitute a default or event of default, under any agreement
                  between Borrower and Lender or Borrower and any affiliate of
                  Lender, including, without limitation, each Franchise
                  Agreement, the Development Agreement and the LLC Agreement;

                           (vi) Borrower shall (i) generally not pay or shall be
                  unable to pay its debts as such debts become due; or (ii)
                  shall make an assignment for the benefit of creditors or
                  petition or apply to any tribunal for the appointment of a
                  custodian, receiver or trustee for it or a substantial part of
                  its assets; or (iii) shall commence any proceedings under any
                  bankruptcy, reorganization, arrangement, readjustment of debt,
                  dissolution or liquidation law or statute of any jurisdiction,
                  whether now or hereafter in effect; or (iv) shall have had any
                  such petition or application filed or any such proceeding
                  commenced against it in which an order for relief is entered
                  or an adjudication or appointment is made; or (v) shall
                  indicate by any act or omission, its consent to, approval of
                  or acquiescence in any such petition, application, proceeding
                  or order for relief or the appointment of a custodian,
                  receiver or trustee for it or a substantial part of its
                  assets; or (vi) shall suffer any such custodianship,
                  receivership or trusteeship to continue undischarged for a
                  period of thirty (30) days or more;

                           (vii) Borrower shall be liquidated, dissolved,
                  partitioned or terminated or the articles of organization or
                  certificate of authority shall expire or be revoked;

                           (viii) Borrower shall default in the timely payment
                  or performance of any obligation now or hereafter owed to
                  Lender in connection with any other indebtedness of such
                  Borrower to Lender; or

                           (ix) Lender shall reasonably suspect the occurrence
                  of one or more of the aforesaid events of default and
                  Borrower, upon the request of Lender, shall fail to provide
                  evidence reasonably satisfactory to Lender that such event or
                  events of default have not in fact occurred.

                  (b) Remedies. Upon the occurrence of an Event of Default
         described in Subsection 4(iv) hereof, the indebtedness evidenced by the
         Note as well as any other indebtedness of Borrower to Lender shall be
         immediately due and payable in full; and

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         upon the occurrence of any other Event of Default described above,
         Lender at any time thereafter may, at its option, accelerate the
         maturity of the indebtedness evidenced by the Note as well as any and
         all indebtednesses of Borrower to Lender, all without notice of any
         kind. Upon the occurrence of such Event of Default and the acceleration
         of the maturity of the indebtedness evidenced by the Note, Lender shall
         have all rights and remedies that Lender may now or hereafter possess
         at law, in equity or by statute.

         5. Miscellaneous.

                  (a) Performance by Lender. If Borrower shall default in the
         payment, performance or observance of any covenant, term or condition
         of this Agreement, Lender may, at its option, pay, perform or observe
         the same and all payments made or costs or expenses incurred by Lender
         in connection therewith, with interest thereon at the default rate
         provided in the Note, shall be immediately repaid to Lender by
         Borrower.

                  (b) Successors and Assigns. All covenants and agreements
         contained in this Agreement by or on behalf of Borrower or by or on
         behalf of Lender shall bind and inure to the benefit of their
         respective heirs, legal representatives, successors-in-title and
         assigns.

                  (c) Costs and Expenses. Borrower shall pay any and all costs
         and expenses incurred in connection with the making, administration,
         servicing and collection of the Loan, promptly upon demand of Lender.

                  (d) Severability. If any provision of this Agreement shall be
         invalid or unenforceable, the remainder of this Agreement shall not be
         affected and shall be enforced to the greatest extent permitted by law.

                  (e) Notices. Any notices permitted or required to be made
         hereunder shall be made in writing, signed by the party giving such
         notice and shall be delivered personally, telecopied or sent by
         certified mail or nationally recognized courier service (such as
         Federal Express) to the party at the address set forth below or at such
         other address as may be supplied in writing and of which receipt has
         been acknowledged in writing. The date of personal delivery, telecopy
         or the date of mailing (or delivery to such courier service) as the
         case may be shall be the date of such notice. For purposes of this
         Agreement:

                           The address of Lender is:

                           O'Charley's Inc.
                           3038 Sidco Drive
                           Nashville, TN  37204
                           Attention: R. Jeffrey Williams
                           Telecopy Number: (615) 782-5031

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                           with a copy to:

                           Bass, Berry & Sims PLC
                           2700 AmSouth Center
                           Nashville, Tennessee 37238
                           Attention: J. Page Davidson
                           Telecopy Number: 615/742-2753

                           The address of Borrower is:

                           Wi-Tenn Restaurants, LLC
                           3038 Sidco Drive
                           Nashville, Tennessee 37204
                           Attention:  Richard K. Arras
                           Telecopy Number: (615) 782-5043

                  (f) Miscellaneous. This Agreement shall be construed and
         enforced under the laws of the State of Tennessee. No amendment or
         modification hereof shall be effective except in a writing executed by
         the parties hereto.

         [Remainder of this page intentionally left blank. Signatures on
                               following page(s).]

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         IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.

                           BORROWER:  WI-TENN RESTAURANTS, LLC

                                      By:   /s/ Richard K. Arras
                                          --------------------------------------
                                      Title:   President and Chief Exec. Officer

                           Location(s) of Collateral: ______________________
                                                      ______________________

                                                      ______________________
                                                      ______________________

                                                      ______________________
                                                      ______________________

                           LENDER:    O'CHARLEY'S INC.

                                      By:   /s/ Gregory L. Burns
                                          --------------------------------------
                                      Title:   Chairman and Chief Exec. Officer

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