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Table of Contents


UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
_____________________________________________________________
FORM 10-Q
_____________________________________________________________


    x    QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 
For the quarterly period ended April 3, 2018
or
    o TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from             to            
Commission File Number: 001-35987
___________________________________________________________
NOODLES & COMPANY
(Exact name of registrant as specified in its charter)
_____________________________________________________________
Delaware
 
84-1303469
(State or other jurisdiction of incorporation or organization)
 
(I.R.S. Employer Identification No.)
520 Zang Street, Suite D
 
 
Broomfield, CO
 
80021
(Address of principal executive offices)
 
(Zip Code)
 
(720) 214-1900
(Registrant’s telephone number, including area code)
(Former name, former address and former fiscal year, if changed since last report)
 
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.  Yes  x No o
 
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).  Yes  x No o

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company.  See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer o
 
Accelerated filer x
 
 
 
Non-accelerated filer o
 
Smaller reporting company o
(Do not check if a smaller reporting company)
 
Emerging growth company x
 
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.    x

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).  Yes  o  No  x
 
Indicate the number of shares outstanding of each of the issuer’s classes of common stock, as of the latest practicable date.
Class
 
Outstanding at May 7, 2018
Class A Common Stock, $0.01 par value per share
 
39,613,343 shares
Class B Common Stock, $0.01 par value per share
 
1,522,098 shares



Table of Contents

TABLE OF CONTENTS

 
 
 
Page
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 





1

Table of Contents

PART I

Item 1. Financial Statements

Noodles & Company
Condensed Consolidated Balance Sheets
(in thousands, except share and per share data)
 
 
April 3,
2018
 
January 2,
2018
 
 
(unaudited)
 
 
Assets
 
 
 
 
Current assets:
 
 
 
 
Cash and cash equivalents
 
$
2,624

 
$
3,361

Accounts receivable
 
1,689

 
2,434

Inventories
 
9,948

 
9,929

Prepaid expenses and other assets
 
5,631

 
6,258

Income tax receivable
 
102

 
76

Total current assets
 
19,994

 
22,058

Property and equipment, net
 
148,847

 
152,593

Goodwill
 
6,400

 
6,400

Intangibles, net

1,521

 
1,565

Other assets, net
 
2,575

 
2,617

Total long-term assets
 
159,343

 
163,175

Total assets
 
$
179,337

 
$
185,233

Liabilities and Stockholders’ Equity
 
 
 
 
Current liabilities:
 
 
 
 
Accounts payable
 
$
9,664

 
$
10,929

Accrued payroll and benefits
 
8,000

 
11,719

Accrued expenses and other current liabilities
 
20,893

 
21,221

Total current liabilities
 
38,557

 
43,869

Long-term debt, net
 
62,871

 
57,624

Deferred rent
 
38,585

 
38,872

Deferred tax liabilities, net
 
171

 
416

Other long-term liabilities
 
7,746

 
8,591

Total liabilities
 
147,930

 
149,372

 
 
 
 
 
Stockholders’ equity:
 
 
 
 
Preferred stock—$0.01 par value, 1,000,000 shares authorized and undesignated as of April 3, 2018 and January 2, 2018; no shares issued or outstanding
 

 

Common stock—$0.01 par value, 180,000,000 shares authorized as of April 3, 2018 and January 2, 2018; 43,559,312 issued and 41,135,441 outstanding as of April 3, 2018 and 43,550,329 issued and 41,126,458 outstanding as of January 2, 2018
 
436

 
436

Treasury stock, at cost, 2,423,871 shares as of April 3, 2018 and January 2, 2018
 
(35,000
)
 
(35,000
)
Additional paid-in capital
 
172,240

 
171,613

Accumulated deficit
 
(106,269
)
 
(101,188
)
Total stockholders’ equity
 
31,407

 
35,861

Total liabilities and stockholders’ equity
 
$
179,337

 
$
185,233

   See accompanying notes to condensed consolidated financial statements.

2

Table of Contents

Noodles & Company
Condensed Consolidated Statements of Operations
(in thousands, except share and per share data, unaudited)

 
 
Fiscal Quarter Ended
 
 
April 3,
2018
 
April 4,
2017
Revenue:
 
 
 
 
Restaurant revenue
 
$
109,613

 
$
115,527

Franchising royalties and fees
 
913

 
1,188

Total revenue
 
110,526

 
116,715

Costs and expenses:
 
 
 
 
Restaurant operating costs (exclusive of depreciation and amortization shown separately below):
 
 
 
 
Cost of sales
 
29,256

 
32,087

Labor
 
36,572

 
39,594

Occupancy
 
12,763

 
14,001

Other restaurant operating costs
 
16,898

 
17,147

General and administrative
 
10,268

 
10,666

Depreciation and amortization
 
5,820

 
6,267

Pre-opening
 
47

 
545

Restaurant impairments, closure costs and asset disposals
 
1,580

 
22,054

Total costs and expenses
 
113,204

 
142,361

Loss from operations
 
(2,678
)
 
(25,646
)
Interest expense, net
 
1,138

 
1,008

Loss before income taxes
 
(3,816
)
 
(26,654
)
(Benefit) provision for income taxes
 
(241
)
 
191

Net loss
 
(3,575
)
 
(26,845
)
Accretion of preferred stock to redemption value
 

 
(965
)
Net loss attributable to common stockholders
 
$
(3,575
)
 
$
(27,810
)
Loss per share of Class A and Class B common stock, combined:
 
 
 
 
Basic
 
$
(0.09
)
 
$
(0.99
)
Diluted
 
$
(0.09
)
 
$
(0.99
)
Weighted average shares of Class A and Class B common stock outstanding, combined:
 
 
 
 
Basic
 
41,128,473

 
28,073,333

Diluted
 
41,128,473

 
28,073,333


See accompanying notes to condensed consolidated financial statements.

3

Table of Contents

Noodles & Company
Condensed Consolidated Statements of Cash Flows
(in thousands, unaudited)

 
 
Fiscal Quarter Ended
 
 
April 3,
2018
 
April 4,
2017
Operating activities
 
 
 
 
Net loss
 
$
(3,575
)
 
$
(26,845
)
Adjustments to reconcile net loss to net cash used in operating activities:
 
 
 
 
Depreciation and amortization
 
5,820

 
6,267

Deferred income taxes
 
(245
)
 
191

Restaurant impairments, closure costs and asset disposals
 
1,419

 
18,460

Amortization of debt issuance costs
 
210

 
83

Stock-based compensation
 
580

 
298

Changes in operating assets and liabilities:
 
 
 
 
Accounts receivable
 
745

 
1,975

Inventories
 
(44
)
 
(123
)
Prepaid expenses and other assets
 
651

 
(260
)
Accounts payable
 
539

 
1,284

Deferred rent
 
(288
)
 
679

Income taxes
 
(26
)
 
68

Accrued expenses and other liabilities
 
(6,790
)
 
(10,153
)
Net cash used in operating activities
 
(1,004
)
 
(8,076
)
Investing activities
 
 
 
 
Purchases of property and equipment
 
(4,805
)
 
(6,601
)
Net cash used in investing activities
 
(4,805
)
 
(6,601
)
Financing activities
 
 
 
 
Net borrowings from swing line loan
 
5,038

 
(197
)
Proceeds from issuance of long-term debt
 

 
5,915

Payments on long-term debt
 

 
(37,015
)
Issuance of preferred stock and common stock warrants, net of transaction expenses (see Note 9)
 

 
16,688

Issuance of common stock, net of transaction expenses (see Note 9)
 

 
31,321

Proceeds from exercise of stock options and employee stock purchase plan
 
35

 
38

Debt issuance costs
 
(1
)
 
(662
)
Net cash provided by financing activities
 
5,072

 
16,088

Net (decrease) increase in cash and cash equivalents
 
(737
)
 
1,411

Cash and cash equivalents
 
 
 
 
Beginning of period
 
3,361

 
1,837

End of period
 
$
2,624

 
$
3,248


See accompanying notes to condensed consolidated financial statements.

4

Table of Contents

NOODLES & COMPANY
Notes to Condensed Consolidated Financial Statements
(unaudited)

1. Business Summary and Basis of Presentation
Business
Noodles & Company (the “Company”), a Delaware corporation, develops and operates fast casual restaurants that serve globally inspired noodle and pasta dishes, soups, salads and appetizers. As of April 3, 2018, the Company had 411 company-owned restaurants and 65 franchise restaurants in 29 states and the District of Columbia. The Company operates its business as one operating and reportable segment.
Basis of Presentation
The accompanying unaudited condensed consolidated financial statements include the accounts of Noodles & Company and its subsidiaries. All intercompany accounts and transactions have been eliminated in consolidation. The accompanying interim unaudited condensed consolidated financial statements have been prepared by the Company pursuant to the rules and regulations of the Securities and Exchange Commission (the “SEC”). Accordingly, they do not include all the information and footnotes required by accounting principles generally accepted in the United States of America (“GAAP”) for complete financial statements. In the opinion of the Company, all adjustments considered necessary for the fair presentation of the Company’s results of operations, financial position and cash flows for the periods presented have been included and are of a normal, recurring nature. The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. The results of operations for any interim period are not necessarily indicative of results for the full year. Certain information and footnote disclosures normally included in the Company’s annual consolidated financial statements on Form 10-K have been condensed or omitted. The condensed consolidated balance sheet as of January 2, 2018 was derived from audited financial statements. These financial statements should be read in conjunction with the audited financial statements and the related notes included in the Company’s Annual Report on Form 10-K for the fiscal year ended January 2, 2018.
Fiscal Year
The Company operates on a 52- or 53-week fiscal year ending on the Tuesday closest to December 31. Fiscal year 2018, which ends on January 1, 2019, and fiscal year 2017, which ended on January 2, 2018, both contain 52 weeks. The Company’s fiscal quarters each contain 13 operating weeks, with the exception of the fourth quarter of a 53-week fiscal year, which contains 14 operating weeks. The Company’s fiscal quarter that ended April 3, 2018 is referred to as the first quarter of 2018, and the fiscal quarter ended April 4, 2017 is referred to as the first quarter of 2017.
Recent Accounting Pronouncements
In February 2016, the FASB issued ASU No. 2016-02, “Leases.” The pronouncement amends the existing accounting standards for lease accounting, including requiring lessees to recognize most leases on their balance sheet and making targeted changes to lessor accounting. This pronouncement will be effective for interim and annual periods beginning after December 15, 2018 (the Company’s first quarter of fiscal 2019), with early adoption permitted. The new lease standard requires a modified retrospective transition approach for all leases existing at, or entered into after, the date of initial application, with an option to use certain transition relief. The Company believes the adoption of ASU No. 2016-02 will have a significant impact on its consolidated balance sheets by significantly increasing its non-current assets and non-current liabilities in order to record the right of use assets and related lease liabilities for its existing operating leases. The Company is currently evaluating the impact the adoption of this accounting standard will have on its results of operations and cash flows and related disclosures.
Recently Adopted Accounting Pronouncements
In May 2014, the FASB issued ASU No. 2014-09, “Revenue from Contracts with Customers (Topic 606),” which supersedes the revenue recognition requirements in Accounting Standards Codification 605, “Revenue Recognition.” This ASU is based on the principle that revenue is recognized to depict the transfer of goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled in exchange for those goods or services. The ASU also requires additional disclosure about the nature, amount, timing and uncertainty of revenue and cash flows arising from customer contracts, including significant judgments and changes in judgments and assets recognized from costs incurred to obtain or fulfill a contract. In August 2015, the FASB issued ASU No. 2015-14, which deferred the effective date of the new revenue standard by one year, and allowed entities the option to early adopt the new revenue standard as of the original effective date. There have been multiple standards

5


updates amending this guidance or providing corrections or improvements on issues in the guidance. The requirements for these standards relating to Topic 606 are effective for interim and annual periods beginning after December 15, 2017. This standard permitted adoption using one of two transition methods, either the retrospective or modified retrospective transition method.

The Company adopted these standards at the beginning of the first quarter of fiscal 2018 using the modified retrospective method. The comparative information has not been restated and continues to be reported under the accounting standards in effect for those periods. The adoption of these standards did not have a material impact on the Company’s Condensed Consolidated Statements of Operations in the first quarter of 2018. The primary impact of adoption was the enhancement of the Company’s disclosures related to contracts with customers and revenue recognized from those performance obligations, which includes revenue related to initial fees charged to franchisees and revenue recognized related to gift cards. See disclosure in Note 11, Revenue Recognition.


2. Supplemental Financial Information
Property and equipment, net, consists of the following (in thousands):
 
 
April 3,
2018
 
January 2,
2018
Leasehold improvements
 
$
199,616

 
$
199,211

Furniture, fixtures and equipment
 
120,709

 
120,234

Construction in progress
 
2,261

 
2,592

 
 
322,586

 
322,037

Accumulated depreciation and amortization
 
(173,739
)
 
(169,444
)
 
 
$
148,847

 
$
152,593



Accrued expenses and other current liabilities consist of the following (in thousands):
 
 
April 3,
2018
 
January 2,
2018
Gift card liability
 
$
3,395

 
$
4,078

Occupancy related
 
4,342

 
3,733

Utilities
 
1,618

 
1,705

Data breach liabilities
 
7,605

 
7,605

Other accrued expenses
 
3,933

 
4,100

 
 
$
20,893

 
$
21,221



3. Long-Term Debt
As of April 3, 2018, the Company had a credit facility with Bank of America, N.A. (the “Existing Credit Facility”) expiring in June 2019. The Company had $63.9 million of indebtedness and $3.3 million of letters of credit outstanding under the Existing Credit Facility at April 3, 2018. The Company’s ability to borrow funds pursuant to the Existing Credit Facility was limited by the requirement that it comply with the Existing Credit Facility’s financial covenants upon the measurement dates specified therein. These financial covenants included a maximum lease-adjusted leverage ratio and a minimum consolidated fixed charge coverage ratio. The Existing Credit Facility also contained other customary covenants, including limitations on additional borrowings, acquisitions, dividend payments and lease commitments.
The Existing Credit Facility bore interest between 4.95% and 7.25% during the first quarter of 2018. As of April 3, 2018, the Company also maintained outstanding letters of credit to secure obligations under its workers’ compensation program and certain lease obligations. The Company was in compliance with all of its debt covenants as of April 3, 2018.
On May 9, 2018, the Company entered into a credit facility with U.S. Bank National Association (the “2018 Credit Facility”). The 2018 Credit Facility consists of a term loan facility in an aggregate principal amount of $25.0 million and a revolving line of credit of $65.0 million (which may be increased to $75.0 million), which includes a letter of credit subfacility in the amount of $15.0 million and a swingline subfacility in the amount of $10.0 million. The 2018 Credit Facility has a four-year term and matures on May 9, 2022.

6

Table of Contents

Upon execution of the 2018 Credit Facility, the Company repaid in full its outstanding indebtedness under its Existing Credit Facility using funds drawn on its 2018 Credit Facility. Upon repayment, the Existing Credit Facility and all related agreements were terminated.
Borrowings under the 2018 Credit Facility, including the term loan facility, bear interest annually, at the Company’s option, at either (i) LIBOR plus a margin of 2.25% to 3.25% per annum, based upon the consolidated total lease-adjusted leverage ratio or (ii) the highest of the following base rates plus a margin of 1.25% to 2.25% per annum: (a) the federal funds rate plus 0.50%; (b) the U.S. Bank prime rate or (c) the one-month LIBOR plus 1.00%. The 2018 Credit Facility includes a commitment fee of 0.30% to 0.50% per annum, based upon the consolidated total lease-adjusted leverage ratio, on any unused portion of the revolving credit facility.

4. Fair Value Measurements
The carrying amounts of cash and cash equivalents, accounts receivable, accounts payable and all other current liabilities approximate their fair values due to their short-term nature. The carrying amounts of borrowings under the credit facility approximate fair value as the line of credit and term borrowings vary with market interest rates and negotiated terms and conditions are consistent with current market rates. The fair value of the Company’s line of credit borrowings is measured using Level 2 inputs.

Adjustments to the fair value of non-financial assets measured at fair value on a non-recurring basis as of April 3, 2018 and April 4, 2017 are discussed in Note 7, Restaurant Impairments, Closure Costs and Asset Disposals.

5. Income Taxes
The following table presents the Company’s (benefit) provision for income taxes (in thousands):
 
 
Fiscal Quarter Ended
 
 
April 3,
2018
 
April 4,
2017
(Benefit) provision for income taxes
 
$
(241
)
 
$
191

Effective tax rate
 
6.3
%
 
(0.7
)%


The effective tax rate for the first quarter of 2018 reflects changes made by the Tax Cuts and Jobs Act (“Tax Act”), which was signed into law in December 2017. The primary change from the Tax Act that impacts fiscal 2018 is related to an indefinite carry forward for federal net operating losses, which enabled the Company to release a portion of the previously recorded valuation allowance. For the remainder of fiscal 2018, the Company does not anticipate material income tax expense or benefit as a result of the valuation allowance recorded. The Company will maintain the valuation allowance against deferred tax assets until there is sufficient evidence to support a full or partial reversal. The reversal of a previously recorded valuation allowance will generally result in a benefit to the effective tax rate.

The Company is applying guidance provided by SEC Staff Accounting Bulletin No. 118, which is codified as Accounting Standards Update 2018-05 - Income Taxes (“ASU 2015-05”), in reporting the tax provision for the first quarter ended 2018. This ASU 2015-05 applies in situations where the Company does not have the necessary information available, prepared, or analyzed (including computations) in reasonable detail to complete the accounting for certain income tax effects of the Tax Act. While the amount recorded for the first quarter of 2018 is provisional, the Company expects that any material changes required by the Tax Act will be offset by the valuation allowance. The Company did not finalize any previously reported provisional impact from the Tax Act and will continue its analysis to determine if any adjustments are required to be made during the measurement period provided by ASU 2018-05.

6. Stock-Based Compensation
The Company’s Stock Incentive Plan, as amended and restated in May of 2013, authorizes the grant of nonqualified stock options, incentive stock options, stock appreciation rights, restricted stock, restricted stock units (“RSUs”) and incentive bonuses to employees, officers, nonemployee directors and other service providers. The number of shares of common stock available for issuance pursuant to awards granted under the Stock Incentive Plan on or after the Company’s initial public offering shall not exceed 3,750,500 shares.
The following table shows total stock-based compensation expense (in thousands):

7

Table of Contents

 
Fiscal Quarter Ended
 
April 3,
2018
 
April 4,
2017
Stock-based compensation expense
$
580

 
$
298

Capitalized stock-based compensation expense
$
12

 
$
49




7. Restaurant Impairments, Closure Costs and Asset Disposals
The following table presents restaurant impairments, closure costs and asset disposals (in thousands):
 
Fiscal Quarter Ended
 
April 3,
2018
 
April 4,
2017
Restaurant impairments (1)
$
598

 
$
1,935

Closure costs (1)
554

 
19,886

Loss on disposal of assets and other
428

 
233

 
$
1,580

 
$
22,054


_____________________________
(1)
Restaurant impairments and closure costs in all periods presented above include amounts related to restaurants previously impaired or closed.
During the first quarter of 2018, one restaurant was identified as impaired, compared to four restaurant impairments during the first quarter of 2017. Impairment is based on management’s current assessment of the expected future cash flows of a restaurant based on recent results and other specific market factors. Impairment expense is a Level 3 fair value measure and is determined by comparing the carrying value of restaurant assets to the estimated fair market value of the restaurant assets at resale value.
The closure costs of $0.6 million recognized during the first quarter of 2018 are primarily related to the ongoing costs of restaurants closed during the first quarter of 2017, as well as ongoing costs of restaurants closed in the fourth quarter of 2015. These ongoing costs include adjustments to the liabilities to landlords as lease terminations occur. The closure costs of $19.9 million recognized during the first quarter of 2017 primarily related to the 55 restaurants closed during the first quarter of 2017 and ongoing costs of restaurants closed in the fourth quarter of 2015. These expenses are included in the “Restaurant impairments, closure costs and asset disposals” line in the Condensed Consolidated Statements of Operations.

8. Earnings (Loss) Per Share
Basic earnings (loss) per share (“EPS”) is calculated by dividing net income (loss) available to common stockholders by the weighted-average number of shares of common stock outstanding during each period. Diluted EPS is calculated using net income (loss) available to common stockholders divided by diluted weighted-average shares of common stock outstanding during each period. Potentially dilutive securities include shares of common stock underlying stock options, warrants and RSUs. Diluted EPS considers the impact of potentially dilutive securities except in periods in which there is a loss because the inclusion of the potential common shares would have an anti-dilutive effect.

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The following table sets forth the computations of basic and diluted EPS (in thousands, except share and per share data):
 
 
Fiscal Quarter Ended
 
 
April 3,
2018
 
April 4,
2017
Net loss attributable to common stockholders
 
$
(3,575
)
 
$
(27,810
)
Shares:
 
 
 
 
Basic weighted average shares outstanding
 
41,128,473

 
28,073,333

Effect of dilutive securities
 

 

Diluted weighted average shares outstanding
 
41,128,473

 
28,073,333

Loss per share:
 
 
 
 
Basic loss per share
 
$
(0.09
)
 
$
(0.99
)
Diluted loss per share
 
$
(0.09
)
 
$
(0.99
)


The Company computes the effect of dilutive securities using the treasury stock method and average market prices during the period. Potential common shares are excluded from the computation of diluted earnings (loss) per share when the effect would be anti-dilutive. All potential common shares are anti-dilutive in periods of net loss. The number of shares issuable on the vesting or exercise of share based awards or exercise of outstanding warrants, and the shares underlying the 18,500 shares of convertible preferred stock outstanding in the first quarter of 2017, excluded from the calculation of diluted loss per share because the effect of their inclusion would have been anti-dilutive totaled 3,106,710 and 7,670,529 for the first quarters of 2018 and 2017, respectively.

9. Stockholders’ Equity
Securities Purchase Agreement with L Catterton
On February 8, 2017, the Company entered into a securities purchase agreement with L Catterton, pursuant to which the Company agreed, in return for aggregate gross proceeds of $18.5 million, to sell to L Catterton an aggregate of 18,500 shares of preferred stock convertible into 4,252,873 shares of the Company’s Class A common stock, par value $0.01 per share, at a price per share of $1,000, plus warrants exercisable for five years beginning six months following their issuance for the purchase of 1,913,793 shares of the Company’s Class A common stock, at a price per share of $4.35 (such transactions, collectively, the “private placement”). The proceeds have been, and will continue to be used, in conjunction with cash flow from the Company’s operations and the proceeds received from the transaction with Mill Road (see below), to satisfy existing and anticipated liabilities and to fund, in part, certain capital expenditures related to business initiatives in its company-owned restaurants. Any remaining proceeds are expected to be used for general corporate purposes. The funding of the private placement occurred on February 9, 2017 and the net proceeds from the transaction were $16.7 million during the first quarter of 2017, after $1.8 million of transaction expenses.
The Company determined that the preferred stock was more akin to a temporary equity security than permanent equity primarily because the preferred stock was contingently redeemable upon the occurrence of an event that was outside of the Company’s control. The proceeds were allocated between the three features of the private placement: the warrants, the embedded beneficial conversion feature in the preferred stock, and the preferred stock itself.  The fair values of the warrants of $3.1 million and the embedded beneficial conversion feature of $3.1 million were recorded as a discount against the stated value of the preferred stock on the date of issuance. The fair value of the warrants was estimated using a Black-Scholes option pricing model which is a Level 2 estimate of fair value. 
On April 5, 2017, the Company delivered a notice to L Catterton of its election to exercise the conversion option with respect to the Series A Convertible Preferred Stock. The terms of the preferred stock provided that the Company could, at its option upon the satisfaction of certain conditions, cause all outstanding shares of preferred stock to be automatically converted into the Company’s Class A common stock. The conversion of the preferred stock into 4,252,873 shares of the Company’s Class A Common Stock occurred on April 12, 2017. The discount was amortized, using the interest method, and treated as a deemed dividend through the date of conversion, which resulted in the accretion of the preferred stock to its full redemption value. After the conversion, no shares of preferred stock are outstanding. The amortized discount for the first quarter of 2017 which was treated in the same manner as dividends was $1.0 million.
At the conversion date, all unamortized discounts were recognized immediately as a deemed dividend, which increased the net loss attributable to common stockholders in the second quarter of 2017.

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Securities Purchase Agreement with Mill Road Capital
On March 13, 2017, the Company entered into a securities purchase agreement with Mill Road Capital II, L.P. (“Mill Road”), pursuant to which the Company agreed, in return for aggregate gross proceeds of $31.5 million, to issue to Mill Road an aggregate of 8,873,240 shares of its Class A common stock, par value $0.01 per share, at a price per share of $3.55, which was equal to the closing sale price for the Company’s Class A common stock on March 10, 2017. On April 3, 2017, such shares were issued and the funding of the private placement occurred. The net proceeds from the transaction were $31.3 million during the first quarter of 2017, after $0.2 million of transaction expenses. The Company had accrued for an additional $2.1 million of transaction expenses, which further reduced the net proceeds from the transaction when paid in the second quarter of 2017.

10. Supplemental Disclosures to Condensed Consolidated Statements of Cash Flows
The following table presents the supplemental disclosures to the Condensed Consolidated Statements of Cash Flows for the first quarters ended April 3, 2018 and April 4, 2017 (in thousands):
 
 
April 3,
2018
 
April 4,
2017
Interest paid (net of amounts capitalized)
 
$
1,315

 
$
1,431

Income taxes paid (refunded)
 
29

 
(68
)
Changes in purchases of property and equipment accrued in accounts payable, net
 
(1,753
)
 
(1,034
)


11. Revenue Recognition
Revenue
Revenue consists of sales from restaurant operations and franchise royalties and fees. Revenue from the operation of company-owned restaurants are recognized when sales occur. The Company reports revenue net of sales and use taxes collected from customers and remitted to governmental taxing authorities.
The Company adopted the revenue recognition standards under Topic 606 at the beginning of the first quarter of fiscal 2018 using the modified retrospective method. The adoption of these standards did not have an impact on the Company’s recognition of revenue from company-owned restaurants or its recognition of continuing royalty fees from franchisees, which are based on a percentage of restaurant revenues and are recognized in the period the related franchised restaurants’ sales occur.
Gift Cards
The Company sells gift cards which do not have an expiration date, and it does not deduct non-usage fees from outstanding gift card balances. The Company recognizes revenue from gift cards when the gift card is redeemed by the customer or the Company determines the likelihood of the gift card being redeemed by the customer is remote (“gift card breakage”). The determination of the gift card breakage rate is based upon Company-specific historical redemption patterns. The Company has determined that approximately 6% of gift cards will not be redeemed, which is recognized ratably over the estimated redemption period of the gift card, approximately 18 months. Gift card liability balances are typically highest at the end of each calendar year following increased gift card purchases during the holiday season. The adoption of Topic 606 did not have an impact on the Company’s recognition of revenue from gift cards, including the recognition of gift card breakage, as the new standard requires the use of the “proportionate” method for recognizing breakage, which the Company has historically utilized.
As of April 3, 2018 and January 2, 2018, the current portion of the gift card liability, $3.4 million and $4.1 million, respectively, is included in accrued expenses and other current liabilities, and the long-term portion, $0.3 million and $0.4 million, respectively, is included in other long-term liabilities in the Consolidated Balance Sheets.
Revenue recognized in the Condensed Consolidated Statements of Operations for the redemption of gift cards that were included in the gift card liability balances at the beginning of each fiscal year was $1.8 million during both the first quarters of 2018 and 2017.
Franchise Fees
Royalties from franchise restaurants are based on a percentage of restaurant revenues and are recognized in the period the related franchised restaurants’ sales occur. Development fees and franchise fees, portions of which are collected in advance, are nonrefundable and are recognized in income ratably over the term of the related franchise agreement or recognized upon the termination of the agreement between the Company and the franchisee. The adoption of Topic 606 did impact the Company’s accounting for initial fees charged to franchisees. In the past, the Company recognized initial franchise fees when all material services or conditions relating to the sale of the franchise had been substantially performed or satisfied by the Company, which was generally when a new franchise restaurant opened. In accordance with the new guidance, the Company has determined that the initial franchise services are not distinct from the continuing rights or services offered during the term of the franchise agreement and should be treated as a single performance obligation. Therefore, initial fees received from franchisees will be recognized as revenue over the term of each respective franchise agreement, which is typically 20 years.
An adjustment to beginning retained earnings and a corresponding contract liability of $1.5 million was established on the date of adoption, at the beginning of the first quarter of 2018, associated with the initial fees received through January 2, 2018 that would have been deferred and recognized over the term of each respective franchise agreement if the new guidance had been applied in the past.

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The Company recognized revenue of $0.1 million during the first quarter of 2018 related to initial fees from franchisees that were included in the contract liability balance at the beginning of the year. This amount included fees recognized upon the termination of one franchise restaurant agreement in the first quarter of 2018. The Company expects to recognize approximately $0.1 million each fiscal year through fiscal 2022 and approximately $0.9 million thereafter related to performance obligations that are unsatisfied as of April 3, 2018.

12. Commitments and Contingencies
Data Security Incident
Overview
On June 28, 2016, the Company announced that a data security incident compromised the security of the payment information of some customers who used debit or credit cards at certain Noodles & Company locations between January 31, 2016 and June 2, 2016. The malware involved in the incident has been removed, and the Company believes that it no longer poses a risk to credit or debit cards currently being used at affected locations. The Company continues to implement additional security procedures to further secure customers’ debit and credit card information.
Card Company Assessments
In the fourth quarter of 2016, the Company recorded a charge of $10.6 million for estimated losses, at the low end of an estimated range, associated with claims and anticipated claims by payment card companies for non-ordinary course operating expenses, card issuer losses and card replacement costs for which it expects to be liable (the “Data Breach Liabilities”). However, the Company may ultimately be subject to Data Breach Liabilities that are up to $5.5 million greater than that amount.
Fees and Costs
The Company has incurred fees and costs associated with this data security incident, including legal fees, investigative fees, other professional fees and costs of communications with customers. The Company expects to continue to incur significant fees and costs associated with the data security incident in future periods, consisting primarily of liabilities to a payment card company that are not covered by insurance for which the Company has already recorded a charge of $10.6 million of which a portion remains to be paid (see Note 2, Supplemental Financial Information).
Insurance Coverage
As discussed above, to limit its exposure to losses arising from matters such as the data security incident, the Company maintained at the time of the incident and continues to maintain data privacy liability insurance coverage. This coverage, and certain other customary business insurance coverage, has reduced the Company’s exposure related to the data security incident.
General
It is possible that losses associated with the data security incident could have a material adverse effect on the Company’s results of operations in future periods. The Company will continue to evaluate information as it becomes known and will record an estimate for additional losses at the time or times when it is probable that an additional loss, if any, will be incurred and the amount of any such loss is reasonably estimable.

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Delaware Gift Card Litigation
As previously disclosed in prior reports filed with the SEC, the Company is named as a defendant in an action filed in the Superior Court of Delaware in New Castle County (the “Court”), entitled The State of Delaware, William French v. Card Compliant, LLC, et. al. The case was filed under seal in June 2013 and was unsealed on March 26, 2014. The complaint in this case alleges that a number of large retailers and restaurant companies, including the Company, knowingly refused to fulfill obligations under Delaware’s Abandoned Property Law by failing to report and deliver “unclaimed gift card funds” to the State of Delaware, and knowingly made, used or caused to be made or used, false statements and records to conceal, avoid or decrease an obligation to pay or transmit money to Delaware in violation of the Delaware False Claims and Reporting Act. The complaint seeks an order that the Company cease and desist from violating the Delaware Abandoned Property Law, monetary damages (including treble damages under the False Claims and Reporting Act), penalties and attorneys’ fees and costs. On November 23, 2015, the Court ruled on a motion to dismiss the complaint. While the Court granted the motion to dismiss with respect to a claim alleging that the defendants intended to defraud the government or willfully concealed property owed to the government and for which a certificate or receipt was provided, it did not dismiss the other claims alleging that the defendants knowingly made false statements to avoid transmitting money to the government. The defendants filed a motion for summary judgment in the case, which was denied on April 30, 2018. The trial date with respect to this matter is now set for September 10, 2018. In 2015 the Company recorded a loss contingency accrual based on a reasonable estimate of the probable losses that might arise from this matter; this loss contingency accrual did not have a material effect on our results of operations. However, the Company may ultimately be subject to greater losses resulting from the litigation. The Company intends to continue to vigorously defend this action.
Other Matters
In the normal course of business, the Company is subject to other proceedings, lawsuits and claims. Such matters are subject to many uncertainties, and outcomes are not predictable with assurance. Consequently, the Company is unable to ascertain the ultimate aggregate amount of monetary liability or financial impact with respect to these matters as of April 3, 2018. These matters could affect the operating results of any one financial reporting period when resolved in future periods. The Company believes that an unfavorable outcome with respect to these matters is remote or a potential range of loss is not material to its consolidated financial statements. Significant increases in the number of these claims, or one or more successful claims that result in greater liabilities than the Company currently anticipates, could materially and adversely affect its business, financial condition, results of operations or cash flows.

NOODLES & COMPANY
MANAGEMENT’S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS

Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations
Noodles & Company is a Delaware corporation that was organized in 2002. Noodles & Company and its subsidiaries are sometimes referred to as “we,” “us,” “our” and the “Company” in this report. The following discussion and analysis of our financial condition and results of operations should be read in conjunction with the accompanying unaudited condensed consolidated financial statements and related notes in Item 1 and with the audited consolidated financial statements and the related notes included in our Annual Report on Form 10-K for our fiscal year ended January 2, 2018. We operate on a 52- or 53-week fiscal year ending on the Tuesday closest to December 31. Our fiscal quarters each contain 13 operating weeks, with the exception of the fourth quarter of a 53-week fiscal year, which contains 14 operating weeks. Fiscal years 2018 and 2017 each contain 52 weeks.    
Cautionary Note Regarding Forward-Looking Statements
In addition to historical information, this discussion and analysis contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 that involve risks and uncertainties such as the number of restaurants we intend to open, projected capital expenditures and estimates of our effective tax rates. In some cases, you can identify forward-looking statements by terms such as “may,” “might,” “will,” “objective,” “intend,” “should,” “could,” “can,” “would,” “expect,” “believe,” “design,” “estimate,” “predict,” “potential,” “plan” or the negative of these terms and similar expressions intended to identify forward-looking statements. These statements reflect our current views with respect to future events and are based on currently available operating, financial and competitive information. Examples of forward-looking statements include all matters that are not historical facts, such as statements regarding estimated costs associated with our closure of underperforming restaurants, the implementation and results of strategic initiatives and our future financial performance. Our actual results may differ materially from those anticipated in these forward-looking statements due to reasons including, but not limited to, our ability to achieve and maintain increases in comparable restaurant sales and to successfully execute our business strategy, including new

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restaurant initiatives and operational strategies to improve the performance of our restaurant portfolio; our ability to maintain compliance with debt covenants and continue to access financing necessary to execute our business strategy; costs associated with our data security incident, including losses associated with settling payment card networks’ expected claims; the success of our marketing efforts; our ability to open new restaurants on schedule; current economic conditions; price and availability of commodities; our ability to adequately staff our restaurants; changes in labor costs; consumer confidence and spending patterns; consumer reaction to industry related public health issues and perceptions of food safety; seasonal factors; weather; and those discussed in “Special Note Regarding Forward-Looking Statements” and “Risk Factors” as filed in our Annual Report on Form 10-K for our fiscal year ended January 2, 2018.
Key Measures We Use to Evaluate Our Performance
To evaluate the performance of our business, we utilize a variety of financial and performance measures. These key measures include revenue, average unit volumes (“AUVs”), comparable restaurant sales, restaurant contribution, restaurant contribution margin, EBITDA and adjusted EBITDA.
Revenue
Restaurant revenue represents sales of food and beverages in company-owned restaurants. Several factors affect our restaurant revenue in any period, including the number of restaurants in operation and per-restaurant sales.
Franchise royalties and fees represent royalty income and initial franchise fees. While we expect that the majority of our revenue and net income growth will be driven by company-owned restaurants, our franchise restaurants remain an important factor impacting our revenue and financial performance.
Seasonal factors cause our revenue to fluctuate from quarter to quarter. Our revenue per restaurant is typically lower in the first and fourth quarters, due to reduced winter and holiday traffic, and is higher in the second and third quarters. As a result of these factors, our quarterly and annual operating results and comparable restaurant sales may fluctuate significantly.
Average Unit Volumes
AUVs consist of the average annualized sales of all company-owned restaurants for the trailing 12 periods. AUVs are calculated by dividing restaurant revenue by the number of operating days within each time period and multiplying by the number of operating days we have in a typical year. This measurement allows management to assess changes in consumer traffic and per person spending patterns at our restaurants.
Comparable Restaurant Sales
Comparable restaurant sales refer to year-over-year sales comparisons for the comparable restaurant base. We define the comparable restaurant base to include restaurants open for at least 18 full periods. This measure highlights performance of existing restaurants, as the impact of new restaurant openings is excluded. Changes in comparable restaurant sales are generated by changes in traffic, which we calculate as the number of entrées sold, or changes in per-person spend, calculated as sales divided by traffic. Per-person spend can be influenced by changes in menu prices and the mix and number of items sold per person.
Measuring our comparable restaurant sales allows us to evaluate the performance of our existing restaurant base. Various factors impact comparable restaurant sales, including:
consumer recognition of our brand and our ability to respond to changing consumer preferences;

overall economic trends, particularly those related to consumer spending;

our ability to operate restaurants effectively and efficiently to meet consumer expectations;

pricing;

the number of restaurant transactions, per-person spend and average check amount;

marketing and promotional efforts;

weather;

food safety and foodborne illness concerns;


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local competition;

trade area dynamics;

introduction of new and seasonal menu items and limited time offerings; and

opening new restaurants in the vicinity of existing locations.
Consistent with common industry practice, we present comparable restaurant sales on a calendar-adjusted basis that aligns current year sales weeks with comparable periods in the prior year, regardless of whether they belong to the same fiscal period or not. Since opening new company-owned and franchise restaurants is a part of our growth strategy and we anticipate new restaurants will be a component of our revenue growth (albeit to a lesser extent in future periods, as discussed below), comparable restaurant sales is only one measure of how we evaluate our performance.
Restaurant Contribution and Restaurant Contribution Margin
Restaurant contribution represents restaurant revenue less restaurant operating costs which are cost of sales, labor, occupancy and other restaurant operating costs. Restaurant contribution margin represents restaurant contribution as a percentage of restaurant revenue. We expect restaurant contribution to increase in proportion to the number of new restaurants we open and our comparable restaurant sales growth. Fluctuations in restaurant contribution margin can also be attributed to those factors discussed below for the components of restaurant operating costs.
We believe that restaurant contribution and restaurant contribution margin are important tools for investors and other interested parties because they are widely-used metrics within the restaurant industry to evaluate restaurant-level productivity, efficiency and performance. We also use restaurant contribution and restaurant contribution margin as metrics to evaluate the profitability of incremental sales at our restaurants, restaurant performance across periods and restaurant financial performance compared with competitors. Restaurant contribution and restaurant contribution margin are supplemental measures of the operating performance of our restaurants and are not reflective of the underlying performance of our business because corporate-level expenses are excluded from these measures.
EBITDA and Adjusted EBITDA
We define EBITDA as net income (loss) before interest expense, provision (benefit) for income taxes and depreciation and amortization. We define adjusted EBITDA as net income (loss) before interest expense, provision (benefit) for income taxes, depreciation and amortization, restaurant impairments, closure costs and asset disposals, certain litigation settlements, non-recurring registration and related transaction costs, severance costs and stock-based compensation.
Management believes that EBITDA and adjusted EBITDA provide clear pictures of our operating results by eliminating certain non-recurring and non-cash expenses that may vary widely from period to period and are not reflective of the underlying business performance.
The presentation of restaurant contribution, restaurant contribution margin, EBITDA and adjusted EBITDA is not intended to be considered in isolation or as a substitute for, or to be superior to, the financial information prepared and presented in accordance with accounting principles generally accepted in the United States of America (“GAAP”). We use these non-GAAP financial measures for financial and operational decision making and as a means to evaluate period-to-period comparisons. We believe that they provide useful information to management and investors about operating results, enhance the overall understanding of past financial performance and future prospects and allow for greater transparency with respect to key metrics used by management in its financial and operational decision making.
Recent Trends, Risks and Uncertainties
Comparable Restaurant Sales. In the first quarter of 2018, comparable restaurant sales decreased 0.2% system-wide, decreased 0.3% for company-owned restaurants, and increased 0.9% for franchise restaurants. Comparable restaurant sales represent year-over-year sales comparisons for restaurants open for at least 18 full periods. During the first quarter, comparable restaurant sales were negatively impacted approximately 50 bps by a shift in the Easter holiday, which is historically a week with low sales volume. The Easter holiday took place in the first quarter of 2018, compared with the second quarter of 2017.
Increased Labor Costs. Similar to much of the restaurant industry, our labor costs have risen in recent periods and we expect that labor costs will continue to rise in future periods as wage rates and benefit costs increase. Some jurisdictions, including some of those in which we operate, have recently increased their minimum wage by a significant amount, and other jurisdictions are considering similar actions. Significant additional government-imposed increases could materially affect our labor costs.

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Restaurant Development. We continue to reduce our rate of company-owned restaurant unit growth, which we anticipate will result in our revenue growing at a slower rate than would be expected if our unit growth rate continued at the historical rate. New restaurants have historically contributed substantially to our revenue growth. In the first quarter of 2018, we opened one company-owned restaurant, closed two company-owned restaurants and our franchisees closed one restaurant. As of April 3, 2018, we had 411 company-owned restaurants and 65 franchise restaurants in 29 states and the District of Columbia.
In 2018, we plan to open between one and four company-owned restaurants. We do not intend to open restaurants in new markets in 2018, and our openings will be primarily in well-established markets where we maintain strong brand awareness and restaurant-level financial performance that exceeds company averages. We believe this more moderate growth strategy will enhance our ability to focus on improving restaurant operations and profitability. We will continue to evaluate our company-owned restaurant growth rate based on our operational and financial performance, capital resources and real estate opportunities.
Certain Restaurant Closures. We closed 55 restaurants in the first quarter of 2017. These restaurants significantly underperformed our restaurant averages, as measured by AUVs, restaurant contribution margin and cash flow. Closing these restaurants has favorably affected our restaurant contribution, restaurant contribution margin, adjusted EBITDA, adjusted EBITDA margin and net income.

Results of Operations
The following table presents a reconciliation of net loss to EBITDA and adjusted EBITDA:
 
 
Fiscal Quarter Ended
 
 
April 3,
2018
 
April 4,
2017
 
 
(in thousands, unaudited)
Net loss
 
$
(3,575
)
 
$
(26,845
)
Depreciation and amortization
 
5,820

 
6,267

Interest expense, net
 
1,138

 
1,008

(Benefit) provision for income taxes
 
(241
)
 
191

EBITDA
 
$
3,142

 
$
(19,379
)
Restaurant impairments, closure costs and asset disposals (1)
 
1,580

 
22,054

Fees and costs related to the registration statement and related transactions (2)
 

 
639

Severance costs (3)
 
278

 
203

Stock-based compensation expense
 
580

 
298

Adjusted EBITDA
 
$
5,580

 
$
3,815

_____________________
(1)
The first quarter of 2018 includes the ongoing closure costs of restaurants closed in the first quarter of 2017 and the impairment of one restaurant. The first quarter of 2017 includes the closure costs related to the 55 restaurants closed in the first quarter of 2017 and the impairment of four restaurants. Both quarters include the ongoing closure costs of restaurants closed in the fourth quarter of 2015. See Note 7, Restaurant Impairments, Closure Costs and Asset Disposals.
(2)
The first quarter of 2017 includes expenses related to the registration statement the Company filed in the first quarter of 2017, which registration statement was later withdrawn.
(3)
The first quarters of 2018 and 2017 include severance costs from departmental structural changes.


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Restaurant Openings, Closures and Relocations
The following table shows restaurants opened or closed during the periods indicated:
 
 
Fiscal Quarter Ended
 
 
April 3,
2018
 
April 4,
2017
Company-Owned Restaurant Activity
 
 
 
 
Beginning of period
 
412

 
457

Openings
 
1

 
7

Closures
 
(2
)
 
(55
)
Restaurants at end of period
 
411

 
409

Franchise Restaurant Activity
 
 
 
 
Beginning of period
 
66

 
75

Openings
 

 
1

Closures
 
(1
)
 
(3
)
Restaurants at end of period
 
65

 
73

Total restaurants
 
476

 
482


Statement of Operations as a Percentage of Revenue
The following table summarizes key components of our results of operations for the periods indicated as a percentage of our total revenue, except for the components of restaurant operating costs, which are expressed as a percentage of restaurant revenue.
 
 
Fiscal Quarter Ended
 
 
April 3,
2018
 
April 4,
2017
Revenue:
 
 
 
 
Restaurant revenue
 
99.2
 %
 
99.0
 %
Franchising royalties and fees
 
0.8
 %
 
1.0
 %
Total revenue
 
100.0
 %
 
100.0
 %
Costs and expenses:
 
 
 
 
Restaurant operating costs (exclusive of depreciation and amortization shown separately below): (1)
 
 
 
 
Cost of sales
 
26.7
 %
 
27.8
 %
Labor
 
33.4
 %
 
34.3
 %
Occupancy
 
11.6
 %
 
12.1
 %
Other restaurant operating costs
 
15.4
 %
 
14.8
 %
General and administrative
 
9.3
 %
 
9.1
 %
Depreciation and amortization
 
5.3
 %
 
5.4
 %
Pre-opening
 
 %
 
0.5
 %
Restaurant impairments, closure costs and asset disposals
 
1.4
 %
 
18.9
 %
Total costs and expenses
 
102.4
 %
 
122.0
 %
Loss from operations
 
(2.4
)%
 
(22.0
)%
Interest expense, net
 
1.0
 %
 
0.9
 %
Loss before income taxes
 
(3.5
)%
 
(22.8
)%
(Benefit) provision for income taxes
 
(0.2
)%
 
0.2
 %
Net loss
 
(3.2
)%
 
(23.0
)%
_____________________________
(1)
As a percentage of restaurant revenue.



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First Quarter Ended April 3, 2018 Compared to First Quarter Ended April 4, 2017
The table below presents our unaudited operating results for the first quarters of 2018 and 2017, and the related quarter-over-quarter changes.
 
 
Fiscal Quarter Ended
 
Increase / (Decrease)
 
 
April 3,
2018
 
April 4,
2017
 
$
 
%
 
 
 
 
 
 
(in thousands)
Revenue:
 
 
 
 
 
 
 
 
Restaurant revenue
 
$
109,613

 
$
115,527

 
$
(5,914
)
 
(5.1
)%
Franchising royalties and fees
 
913

 
1,188

 
(275
)
 
(23.1
)%
Total revenue
 
110,526

 
116,715

 
(6,189
)
 
(5.3
)%
Costs and expenses:
 
 
 
 
 
 
 
 
Restaurant operating costs (exclusive of depreciation and amortization shown separately below):
 
 
 
 
 
 
 
 
Cost of sales
 
29,256

 
32,087

 
(2,831
)
 
(8.8
)%
Labor
 
36,572

 
39,594

 
(3,022
)
 
(7.6
)%
Occupancy
 
12,763

 
14,001

 
(1,238
)
 
(8.8
)%
Other restaurant operating costs
 
16,898

 
17,147

 
(249
)
 
(1.5
)%
General and administrative
 
10,268

 
10,666

 
(398
)
 
(3.7
)%
Depreciation and amortization
 
5,820

 
6,267

 
(447
)
 
(7.1
)%
Pre-opening
 
47

 
545

 
(498
)
 
(91.4
)%
Restaurant impairments, asset disposals and closure costs
 
1,580

 
22,054

 
(20,474
)
 
(92.8
)%
Total costs and expenses
 
113,204

 
142,361

 
(29,157
)
 
(20.5
)%
Loss from operations
 
(2,678
)
 
(25,646
)
 
22,968

 
89.6
 %
Interest expense, net
 
1,138

 
1,008

 
130

 
12.9
 %
Loss before income taxes
 
(3,816
)
 
(26,654
)
 
22,838

 
85.7
 %
(Benefit) provision for income taxes
 
(241
)
 
191

 
(432
)
 
(226.2
)%
Net loss
 
$
(3,575
)
 
$
(26,845
)
 
$
23,270

 
86.7
 %
Company-owned:
 
 
 
 
 
 
 
 
Average unit volumes
 
$
1,080

 
$
1,067

 
$
13

 
1.2
 %
Comparable restaurant sales
 
(0.3
)%
 
(2.5
)%
 


 


Revenue
Total revenue decreased $6.2 million in the first quarter of 2018, or 5.3%, to $110.5 million, compared to $116.7 million in the first quarter of 2017. This decrease was primarily due to the impact of closing 55 company-owned restaurants in the first quarter of 2017, partially offset by additional restaurant openings since the beginning of the first quarter of 2017.
AUVs increased $13,000 compared to the prior year. AUV’s for the trailing twelve months were $1,080,000.
Comparable restaurant sales decreased by 0.3% at company-owned restaurants, increased by 0.9% at franchise-owned restaurants and decreased by 0.2% system-wide in the first quarter of 2018. Comparable sales in the quarter were negatively impacted approximately 50 bps by a shift in the timing of the Easter holiday.

17

Table of Contents

Cost of Sales
Cost of sales decreased by $2.8 million, or 8.8%, in the first quarter of 2018 compared to the same period of 2017, due primarily to the decrease in restaurant revenue in the first quarter of 2018 driven by restaurant closures in the first quarter of 2017. As a percentage of restaurant revenue, cost of sales decreased to 26.7% in the first quarter of 2018 from 27.8% in the first quarter of 2017. The decrease as a percentage of restaurant revenue was primarily due to favorable commodity pricing.
Labor Costs
Labor costs decreased by $3.0 million, or 7.6%, in the first quarter of 2018 compared to the same period of 2017, due primarily to the decrease in restaurant revenue in the first quarter of 2018 driven by restaurant closures in the first quarter of 2017. As a percentage of restaurant revenue, labor costs decreased to 33.4% in the first quarter of 2018 from 34.3% in the first quarter of 2017. The decrease as a percentage of restaurant revenue was driven by the benefit of closing underperforming restaurants in the first quarter of 2017 and labor savings initiatives.
Occupancy Costs
Occupancy costs decreased by $1.2 million, or 8.8%, in the first quarter of 2018 compared to the first quarter of 2017 due primarily to the favorable impact of restaurant closures in the first quarter of 2017. As a percentage of revenue, occupancy costs decreased to 11.6% in the first quarter of 2018, compared to 12.1% in the first quarter of 2017.
Other Restaurant Operating Costs
Other restaurant operating costs decreased by $0.2 million, or 1.5%, in the first quarter of 2018 compared to the first quarter of 2017. As a percentage of restaurant revenue, other restaurant operating costs increased to 15.4% in the first quarter of 2018 from 14.8% in the first quarter of 2017, due primarily to decreased restaurant revenue in the first quarter of 2018 driven by restaurant closures in the first quarter of 2017, increased spend on marketing and expenses associated with off-premise initiatives.
General and Administrative Expense
General and administrative expense decreased by $0.4 million, or 3.7%, in the first quarter of 2018 compared to the first quarter of 2017, primarily attributable to professional fees related to the registration statement we filed in the first quarter of 2017. As a percentage of revenue, general and administrative expense increased to 9.3% in the first quarter of 2018 from 9.1% in the first quarter of 2017 due primarily to less restaurant revenue in the first quarter of 2018 due to restaurant closures in the first quarter of 2017.
Depreciation and Amortization
Depreciation and amortization decreased by $0.4 million, or 7.1%, in the first quarter of 2018 compared to the first quarter of 2017, due primarily to restaurants closed or impaired in prior quarters. As a percentage of revenue, depreciation and amortization decreased to 5.3% in the first quarter of 2018 from 5.4% in the first quarter of 2017.
Pre-Opening Costs
Pre-opening costs decreased by $0.5 million, or 91.4%, in the first quarter of 2018 compared to the first quarter of 2017. The decrease in pre-opening costs was due to fewer restaurants under construction during the first quarter of 2018 compared to the first quarter of 2017.
Restaurant Impairments, Closure Costs and Asset Disposals
Restaurant impairments, closure costs and asset disposals decreased by $20.5 million in the first quarter of 2018 compared to the first quarter of 2017. The decrease was primarily due to the closure of 55 restaurants and impairment of four restaurants in the first quarter of 2017, partially offset by the impairment of one restaurant in the first quarter of 2018, ongoing closure costs of the restaurants closed in 2017 and two restaurants closed in the first quarter of 2018 at the expiration of their leases with minimal related closure costs.
Each quarter we evaluate possible impairment of fixed assets at the restaurant level and record an impairment loss whenever we determine that the fair value of these assets is less than their carrying value. There can be no assurance that such evaluations will not result in additional impairment costs in future periods.
Interest Expense
Interest expense increased by $0.1 million in the first quarter of 2018 compared to the first quarter of 2017. The increase was the result of an increase in the average interest rate on our credit facility and higher amortization of debt issuance costs in the first quarter of 2018 compared to the first quarter of 2017.

18

Table of Contents

(Benefit) Provision for Income Taxes
The effective tax rate was 6.3% for the first quarter of 2018 compared to (0.7)% for the first quarter of 2017. The effective tax rate for the first quarter of 2018 reflects changes made by the Tax Cuts and Jobs Act (“Tax Act”), which was signed into law in December 2017. The primary change from the Tax Act that impacts fiscal 2018 is related to an indefinite carry forward for federal net operating losses, which enabled the Company to release a portion of the previously recorded valuation allowance. For the remainder of fiscal 2018, the Company does not anticipate material income tax expense or benefit as a result of the valuation allowance recorded. The Company will maintain the valuation allowance against deferred tax assets until there is sufficient evidence to support a full or partial reversal. The reversal of a previously recorded valuation allowance will generally result in a benefit to the effective tax rate.

Liquidity and Capital Resources
Summary of Cash Flows
Historically, our primary sources of liquidity and cash flows were operating cash flows and borrowings on our revolving line of credit. In the first quarter of 2017 we determined that we needed additional sources of liquidity in order to pursue our operational strategies and fund obligations such as the liabilities to landlords from the termination of our leases for the restaurants closed in the first quarter of 2017, fees to be paid to our real estate advisor and brokers related to such terminations and other costs of closing restaurants, including severance for terminated employees (“Restaurant Closing Liabilities”) and estimated losses associated with claims and anticipated claims by payment card companies for non-ordinary course operating expenses, card issuer losses and card replacement costs for which we expect to be liable (the “Data Breach Liabilities”). We executed the following transactions in the first quarter of 2017 to provide us with additional liquidity: (i) we completed two private placement transactions for aggregate gross proceeds to us of $50.0 million, and (ii) we amended our credit agreement to increase our flexibility under the credit facility.
We have historically used cash to fund capital expenditures for new restaurant openings, reinvest in our existing restaurants, invest in infrastructure and information technology and maintain working capital; however, due to our anticipated modest unit growth, cash required for new restaurant openings has been correspondingly reduced. Our working capital position benefits from the fact that we generally collect cash from sales to customers the same day, or in the case of credit or debit card transactions, within several days of the related sale, and we typically have up to 30 days to pay our vendors. We believe that expected cash flow from operations, the proceeds received from the private placement transactions and existing borrowing capacity under our credit facility are adequate to fund debt service requirements, operating lease obligations, capital expenditures, the Restaurant Closing Liabilities, the Data Breach Liabilities and working capital obligations for the remainder of fiscal year 2018. There are no material changes in the Company’s contractual obligations that are outside the ordinary course of business.
Cash flows from operating, investing and financing activities are shown in the following table (in thousands):
 
 
Fiscal Quarter Ended
 
 
April 3,
2018
 
April 4,
2017
Net cash used in operating activities
 
$
(1,004
)
 
$
(8,076
)
Net cash used in investing activities
 
(4,805
)
 
(6,601
)
Net cash provided by financing activities
 
5,072

 
16,088

Net (decrease) increase in cash and cash equivalents
 
$
(737
)
 
$
1,411

Operating Activities
Net cash used in operating activities in the first quarter of 2018 decreased $7.1 million compared to the first quarter of 2017. The improvement in operating cash flows resulted primarily from the lower net loss during the first quarter of 2018 as compared to the first quarter of 2017, payments made in the first quarter of 2017 for the termination of leases related to closed restaurants of $2.3 million, a litigation settlement of $1.1 million and for the data breach liabilities of $4.0 million, as well as other working capital changes due to timing. Payments for the termination of leases related to closed restaurants in first quarter of 2018 were $0.9 million.
Investing Activities
Net cash flows used in investing activities in the first quarter of 2018 decreased $1.8 million compared to the first quarter of 2017, primarily due to the reduction in new restaurant development during the first quarter of 2018 compared to the first quarter of 2017. Both periods include reinvestment in existing restaurants and investments in technology.

19

Table of Contents

Financing Activities
Net cash provided by financing activities in the first quarter of 2018 decreased $11.0 million compared to the first quarter of 2017. The decrease in net cash provided by financing activities is primarily due to the net proceeds received from the private placement transactions that occurred during the first quarter of 2017, net of repayments on long-term debt.
Capital Resources
Future Capital Expenditure Requirements. Our capital expenditure requirements are primarily dependent upon the pace of our real estate development program and resulting new restaurant openings, costs for maintenance and remodeling of our existing restaurants, as well as information technology expenses and other general corporate capital expenditures. As mentioned above, our real estate development growth has been and will continue to be reduced in upcoming quarters, compared to our historical rates.
We estimate capital expenditures for the remainder of 2018 to be approximately $5.0 million for a total of approximately $10.0 million for the fiscal year. We expect such capital expenditures to be funded by a combination of cash from operations and borrowings under our revolving credit facility.
Current Resources. Our operations have not required significant working capital and, like many restaurant companies, we operate with negative working capital. Restaurant sales are primarily paid for in cash or by credit or debit card, and restaurant operations do not require significant inventories or receivables. In addition, we receive trade credit for the purchase of food, beverages and supplies, therefore reducing the need for incremental working capital to support growth.
Liquidity. We believe that our current cash and cash equivalents, the expected cash flows from company-owned restaurant operations, the expected franchise fees and royalties and borrowings under the credit facility will be sufficient to fund our cash requirements for working capital needs and capital improvements and maintenance of existing restaurants for the next twelve months. We expect to pay approximately $6.0 million to $9.0 million for the termination of leases related to closed restaurants, including related fees and expenses over the next six months. Additionally, we anticipate paying approximately $8.0 million for the remaining Data Breach Liabilities. However, we may ultimately be subject to Data Breach Liabilities that are up to $5.5 million greater than that amount.
Credit Facility
As of April 3, 2018, we had $63.9 million of indebtedness and $3.3 million of letters of credit outstanding under our revolving credit facility with Bank of America, N.A. (the “Existing Credit Facility”) and we were in compliance with all of our debt covenants.
On May 9, 2018, we entered into a credit facility with U.S. Bank National Association (the “2018 Credit Facility”). The 2018 Credit Facility consists of a term loan facility in an aggregate principal amount of $25.0 million and a revolving line of credit of $65.0 million (which may be increased to $75.0 million), which includes a letter of credit subfacility in the amount of $15.0 million and a swingline subfacility in the amount of $10.0 million. Upon execution of the 2018 Credit Facility, we repaid in full our outstanding indebtedness under our Existing Credit Facility using funds drawn on our 2018 Credit Facility. Upon repayment, the Existing Credit Facility and all related agreements were terminated.
The 2018 Credit Facility has a four-year term and requires amortization payments on the term loan facility. The material terms of the 2018 Credit Facility also include, among other things, the following financial covenants: (i) a maximum consolidated total lease-adjusted leverage ratio covenant; (ii) a minimum consolidated fixed charge coverage ratio covenant; and (iii) a covenant limiting the total capital expenditures by us in any fiscal year. Borrowings under the 2018 Credit Facility bear interest, at our option, at either (i) LIBOR plus a margin of 2.25% to 3.25% per annum, based upon the consolidated total lease-adjusted leverage ratio or (ii) the highest of the following base rates plus a margin of 1.25% to 2.25% per annum: (a) the federal funds rate plus 0.50%; (b) the U.S. Bank prime rate or (c) the one-month LIBOR plus 1.00%. The 2018 Credit Facility includes a commitment fee of 0.30% to 0.50% per annum, based upon the consolidated total lease-adjusted leverage ratio, on any unused portion of the revolving credit facility.
Availability of borrowings under the 2018 Credit Facility is conditioned upon our compliance with the terms of the 2018 Credit Facility, including the financial covenants and other customary affirmative and negative covenants, such as limitations on additional borrowings, acquisitions, dividend payments and lease commitments, and customary representations and warranties.
We expect that we will meet all applicable financial covenants in our 2018 Credit Facility, including the maximum consolidated total lease-adjusted leverage ratio, throughout the fiscal year ending January 1, 2019. However, there can be no assurance we will meet such financial covenants. If such covenants are not met, we would be required to seek a waiver or amendment from the banks participating in the credit facility. There can be no assurance that such waiver or amendment would be granted, which could have a material adverse impact on our liquidity.

20

Table of Contents

Our 2018 Credit Facility is secured by a pledge of stock of substantially all of our subsidiaries and a lien on substantially all of our and our subsidiaries’ personal property assets.
Off-Balance Sheet Arrangements
We had no off-balance sheet arrangements or obligations as of April 3, 2018.

21

Table of Contents

Critical Accounting Policies and Estimates
Our condensed consolidated financial statements and accompanying notes are prepared in accordance with GAAP. Preparing consolidated financial statements requires us to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenue and expenses. These estimates and assumptions are affected by the application of our accounting policies. Our significant accounting policies are described in our Annual Report on Form 10-K for the year ended January 2, 2018. Critical accounting estimates are those that require application of management’s most difficult, subjective or complex judgments, often as a result of matters that are inherently uncertain and may change in subsequent periods. While we apply our judgment based on assumptions believed to be reasonable under the circumstances, actual results could vary from these assumptions. It is possible that materially different amounts would be reported using different assumptions. Our critical accounting estimates are identified and described in our annual consolidated financial statements and the related notes included in our Annual Report on Form 10-K for our fiscal year ended January 2, 2018.
JOBS Act
We qualify as an “emerging growth company” pursuant to the provisions of the Jumpstart our Business Startups (“JOBS”) Act. For as long as we are an “emerging growth company,” we may take advantage of certain exemptions from various reporting requirements that are applicable to other public companies that are not “emerging growth companies,” including, but not limited to, not being required to comply with the auditor attestation requirements of Section 404(b) of the Sarbanes-Oxley Act, reduced disclosure obligations regarding executive compensation in our periodic reports and proxy statements, exemptions from the requirements of holding advisory “say-on-pay” votes on executive compensation and shareholder advisory votes on golden parachute compensation. We will cease to be an “emerging growth company” at the end of this fiscal year.
In addition, Section 107 of the JOBS Act also provides that an “emerging growth company” can take advantage of the extended transition period provided in Section 7(a)(2)(B) of the Securities Act for complying with new or revised accounting standards. An “emerging growth company” can therefore delay the adoption of certain accounting standards until those standards would otherwise apply to private companies. However, we “opted out” of such extended transition period and, as a result, we comply with new or revised accounting standards on the relevant dates on which adoption of such standards is required for non-emerging growth companies. Section 107 of the JOBS Act provides that our decision to opt out of the extended transition period for complying with new or revised accounting standards was irrevocable.

Item 3. Quantitative and Qualitative Disclosures about Market Risk
Interest Rate Risk
We are exposed to market risk from changes in interest rates on debt. Our exposure to interest rate fluctuations is limited to our outstanding bank debt, which bears interest at variable rates. As of April 3, 2018, we had $63.9 million of indebtedness under our revolving line of credit. An increase or decrease of 1.0% in the effective interest rate applied on this loan would have resulted in a pre-tax interest expense fluctuation of approximately $0.6 million on an annualized basis.
Commodity Price Risk
We purchase certain products that are affected by commodity prices and are, therefore, subject to price volatility caused by weather, market conditions and other factors which are not considered predictable or within our control. Although these products are subject to changes in commodity prices, certain purchasing contracts or pricing arrangements contain risk management techniques designed to minimize price volatility. The purchasing contracts and pricing arrangements we use may result in unconditional purchase obligations, which are not reflected in our consolidated balance sheets. Typically, we use these types of purchasing techniques to control costs as an alternative to directly managing financial instruments to hedge commodity prices. In many cases, we believe we will be able to address material commodity cost increases by adjusting our menu pricing or changing our product delivery strategy. However, increases in commodity prices, without adjustments to our menu prices, could increase restaurant operating costs as a percentage of company-owned restaurant revenue.
Inflation
The primary inflationary factors affecting our operations are food, labor costs, energy costs and materials used in the construction of new restaurants. Increases in the minimum wage requirements directly affect our labor costs. Many of our leases require us to pay taxes, maintenance, repairs, insurance and utilities, all of which are generally subject to inflationary increases. Finally, the cost of constructing our restaurants is subject to inflationary increases in the costs of labor and material. Over the past five years, inflation has not significantly affected our operating results with the exception of increased wage inflation that has affected our results from 2015 through the first quarter of 2018. We expect wage inflation to continue to affect our results in the near future.

22

Table of Contents

Item 4. Controls and Procedures
Our management carried out an evaluation, under the supervision and with the participation of our chief executive officer and interim chief financial officer, of the effectiveness of the design and operation of our disclosure controls and procedures as of April 3, 2018, pursuant to Rule 13a-15 under the Exchange Act. In designing and evaluating the disclosure controls and procedures, management recognized that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control objectives. In addition, the design of disclosure controls and procedures must reflect the fact that there are resource constraints and that management is required to apply its judgment in evaluating the benefits of possible controls and procedures relative to their costs.
Based on that evaluation, our chief executive officer and interim chief financial officer concluded that our disclosure controls and procedures are effective to provide reasonable assurance that information we are required to disclose in reports that we file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in SEC rules and forms, and that such information is accumulated and communicated to our management, including our chief executive officer and interim chief financial officer, as appropriate, to allow timely decisions regarding required disclosure.
Changes in Internal Control over Financial Reporting
There have been no changes in our internal control over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act) that occurred during our most recent fiscal quarter that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.


23

Table of Contents


PART II

Item 1. Legal Proceedings
Delaware Gift Card Litigation
As previously disclosed in prior reports filed with the SEC, we are named as a defendant in an action filed in the Superior Court of Delaware in New Castle County (the “Court”), entitled The State of Delaware, William French v. Card Compliant, LLC, et. al. The case was filed under seal in June 2013 and was unsealed on March 26, 2014. The complaint in this case alleges that a number of large retailers and restaurant companies, including us, knowingly refused to fulfill obligations under Delaware’s Abandoned Property Law by failing to report and deliver “unclaimed gift card funds” to the State of Delaware, and knowingly made, used or caused to be made or used, false statements and records to conceal, avoid or decrease an obligation to pay or transmit money to Delaware in violation of the Delaware False Claims and Reporting Act. The complaint seeks an order that we cease and desist from violating the Delaware Abandoned Property Law, monetary damages (including treble damages under the False Claims and Reporting Act), penalties, and attorneys’ fees and costs. On November 23, 2015, the Court ruled on a motion to dismiss the complaint. While the Court granted the motion to dismiss with respect to a claim alleging that the defendants intended to defraud the government or willfully concealed property owed to the government and for which a certificate or receipt was provided, it did not dismiss the other claims alleging that the defendants knowingly made false statements to avoid transmitting money to the government. The defendants filed a motion for summary judgment in the case, which was denied on April 30, 2018. The trial date with respect to this matter is now set for September 10, 2018. In 2015, we recorded a loss contingency accrual based on a reasonable estimate of the probable losses that might arise from this matter; this loss contingency accrual did not have a material effect on our results of operations. However, we may ultimately be subject to greater losses resulting from the litigation. We intend to continue to vigorously defend this action.
Other Matters
In the normal course of business, we are subject to other proceedings, lawsuits and claims. Such matters are subject to many uncertainties, and outcomes are not predictable with assurance. Consequently, we are unable to ascertain the ultimate aggregate amount of monetary liability or financial impact with respect to these matters as of April 3, 2018. These matters could affect the operating results of any one financial reporting period when resolved in future periods. We believe that an unfavorable outcome with respect to these matters is remote or a potential range of loss is not material to our consolidated financial statements. Significant increases in the number of these claims, or one or more successful claims that result in greater liabilities than we currently anticipate, could materially adversely affect our business, financial condition, results of operations or cash flows.

Item 1A. Risk Factors
A description of the risk factors associated with our business is contained in the “Risk Factors” section of our Annual Report on Form 10-K for our fiscal year ended January 2, 2018.  There have been no material changes to our Risk Factors as previously reported.
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds
None.
Item 3. Defaults upon Senior Securities
None.
Item 4. Mine Safety Disclosures
Not applicable.
Item 5. Other Information
The information set forth below is included herewith for the purpose of providing disclosure under “Item 1.01 Entry into a Material Definitive Agreement” and “Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant” of a Current Report on Form 8-K.

24

Table of Contents

On May 9, 2018, we entered into a credit facility with U.S. Bank National Association (the “2018 Credit Facility”). The 2018 Credit Facility consists of a term loan facility in an aggregate principal amount of $25.0 million and a revolving line of credit of $65.0 million (which may be increased to $75.0 million), which includes a letter of credit subfacility in the amount of $15.0 million and a swingline subfacility in the amount of $10.0 million. Upon execution of the 2018 Credit Facility, we repaid in full our outstanding indebtedness under our Existing Credit Facility using funds drawn on our 2018 Credit Facility. Upon repayment, the Existing Credit Facility and all related agreements were terminated.
The 2018 Credit Facility has a four-year term and requires amortization payments on the term loan facility. The material terms of the 2018 Credit Facility also include, among other things, the following financial covenants: (i) a maximum consolidated total lease-adjusted leverage ratio covenant; (ii) a minimum consolidated fixed charge coverage ratio covenant; and (iii) a covenant limiting the total capital expenditures by us in any fiscal year. Borrowings under the 2018 Credit Facility bear interest, at our option, at either (i) LIBOR plus a margin of 2.25% to 3.25% per annum, based upon the consolidated total lease-adjusted leverage ratio or (ii) the highest of the following base rates plus a margin of 1.25% to 2.25% per annum: (a) the federal funds rate plus 0.50%; (b) the U.S. Bank prime rate or (c) the one-month LIBOR plus 1.00%. The 2018 Credit Facility includes a commitment fee of 0.30% to 0.50% per annum, based upon the consolidated total lease-adjusted leverage ratio, on any unused portion of the revolving credit facility.
The foregoing description of the 2018 Credit Facility does not purport to be complete and is qualified in its entirety by reference to the full text of the 2018 Credit Facility agreement, which is filed as Exhibit 10.1 to this Quarterly Report on Form 10-Q.




25

Table of Contents

Item 6. Exhibit Index
Exhibit Number
 
Description of Exhibit
10.1

 
10.2

 
10.3

 
31.1

 
32.1

 
101.INS

 
XBRL Instance Document - the instance document does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document
101.SCH

 
XBRL Taxonomy Extension Schema Document
101.CAL

 
XBRL Taxonomy Extension Calculation Linkbase Document
101.DEF

 
XBRL Taxonomy Extension Definition Linkbase Document
101.LAB

 
XBRL Taxonomy Extension Label Linkbase Document
101.PRE

 
XBRL Taxonomy Extension Presentation Linkbase Document



26

Table of Contents

SIGNATURES
Pursuant to the requirements of the Securities Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
NOODLES & COMPANY
By:
/s/ DAVE BOENNIGHAUSEN
 
Dave Boennighausen
Chief Executive Officer
Date
May 11, 2018



27
Exhibit

EXHIBIT 10.1





Deal CUSIP 65538EAF0
Revolving Loan CUSIP 65538EAG8
Term Loan CUSIP 65538EAH6



CREDIT AGREEMENT
Dated as of May 9, 2018
among
NOODLES & COMPANY,
as the Borrower,
each other Loan Party party hereto,
U.S. BANK NATIONAL ASSOCIATION,
as Administrative Agent, L/C Issuer and Swing Line Lender,
THE OTHER LENDERS PARTY HERETO,
U.S. BANK NATIONAL ASSOCIATION,
as sole lead arranger and sole bookrunner,
and
COLORADO STATE BANK AND TRUST,
as Documentation Agent







TABLE OF CONTENTS


ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1
1.01

 
Defined Terms
1
1.02

 
Other Interpretive Provisions
36
1.03

 
Accounting Terms
37
1.04

 
Rounding
38
1.05

 
Times of Day
38
1.06

 
Letter of Credit Amounts
38
1.07

 
Eurodollar Rate
38
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
38
2.01

 
Term Loans and Revolving Credit Loans
38
2.02

 
Borrowings, Conversions and Continuations of Loans
39
2.03

 
Letters of Credit
41
2.04

 
Swing Line Loans
49
2.05

 
Prepayments
53
2.06

 
Termination or Reduction of Commitments
55
2.07

 
Repayment of Loans
56
2.08

 
Interest
57
2.09

 
Fees
58
2.10

 
Computation of Interest and Fees
58
2.11

 
Evidence of Debt
59
2.12

 
Payments Generally; Administrative Agent’s Clawback
60
2.13

 
Sharing of Payments by Lenders
62
2.14

 
Cash Collateral
63
2.15

 
Defaulting Lenders
64
2.16

 
Increase Option
65
2.17

 
Revolving Credit Facility Rebalancing
68
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
68
3.01

 
Taxes
68
3.02

 
Illegality
72
3.03

 
Inability to Determine Rates
73
3.04

 
Increased Costs; Reserves on Eurodollar Rate Loans
74
3.05

 
Compensation for Losses
76
 
 
 
 
 
 
 
 
 
 
 
 

 
--ii-
 




TABLE OF CONTENTS


3.06

 
Mitigation Obligations; Replacement of Lenders
76
3.07

 
Survival
77
ARTICLE IV
CONDITIONS PRECEDENT TO EFFECTIVENESS AND CREDIT EXTENSIONS
77
4.01

 
Conditions to Effectiveness on the Closing Date
77
4.02

 
Conditions to all Credit Extensions
80
ARTICLE V
REPRESENTATIONS AND WARRANTIES
81
5.01

 
Existence, Qualification and Power
81
5.02

 
Authorization; No Contravention
81
5.03

 
Governmental Authorization; Other Consents
81
5.04

 
Binding Effect
82
5.05

 
Financial Statements; No Material Adverse Effect
82
5.06

 
Litigation
83
5.07

 
No Default
83
5.08

 
Ownership of Property
83
5.09

 
Environmental Compliance
84
5.10

 
Insurance
84
5.11

 
Taxes
84
5.12

 
ERISA Compliance
85
5.13

 
Subsidiaries; Equity Interests; Loan Parties
86
5.14

 
Margin Regulations; Investment Company Act
86
5.15

 
Disclosure
86
5.16

 
Compliance with Laws
87
5.17

 
Intellectual Property; Licenses, Etc
87
5.18

 
Status of Food License Approvals and Filings
87
5.19

 
Material Contracts
87
5.20

 
Leases
87
5.21

 
Unit Locations; Franchised Unit Locations
88
5.22

 
Franchise Agreements
88
5.23

 
Solvency
88
5.24

 
Labor Matters
88
5.25

 
Collateral Documents
88
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
--iii-
 




TABLE OF CONTENTS


5.26

 
Compliance with OFAC Rules and Regulations
88
5.27

 
Anti-Corruption Laws
89
5.28

 
Use of Proceeds
89
5.29

 
Accuracy of Information
89
5.30

 
 
89
ARTICLE VI
AFFIRMATIVE COVENANTS
89
6.01

 
Financial Statements
89
6.02

 
Compliance Certificates and Certain Reports Sent to Other Parties
91
6.03

 
Notices
93
6.04

 
Payment of Obligations
94
6.05

 
Preservation of Existence, Permits, License, Etc
94
6.06

 
Maintenance of Properties
94
6.07

 
Maintenance of Insurance
95
6.08

 
Compliance with Laws
95
6.09

 
Books and Records
95
6.10

 
Inspection Rights
95
6.11

 
Use of Proceeds
96
6.12

 
Additional Subsidiaries and Collateral Generally
96
6.13

 
Compliance with Environmental Laws
98
6.14

 
Further Assurances
98
6.15

 
Compliance with Terms of Leaseholds
98
6.16

 
Anti-Corruption Laws
98
6.17

 
Material Contracts
99
6.18

 
Compliance with Terms of Franchise Agreements
99
6.19

 
Cash Collateral Accounts
99
6.20

 
Cash Management Arrangements
99
ARTICLE VII
NEGATIVE COVENANTS
100
7.01

 
Liens
100
7.02

 
Indebtedness
102
7.03

 
Investments
103
7.04

 
Fundamental Changes
104
7.05

 
Dispositions
105
 
 
 
 
 
 
 
 
 
 
 
 

 
--iv-
 




TABLE OF CONTENTS


7.06

 
Restricted Payments
106
7.07

 
Change in Nature of Business
107
7.08

 
Transactions with Affiliates
107
7.09

 
Burdensome Agreements
107
7.10

 
Use of Proceeds
107
7.11

 
Financial Covenants
107
7.12

 
Capital Expenditures
109
7.13

 
Amendments of Organization Documents
109
7.14

 
Accounting Changes
110
7.15

 
Prepayments, Etc. of Indebtedness
110
7.16

 
Sanctions
110
7.17

 
Anti-Corruption Laws
110
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
110
8.01

 
Events of Default
110
8.02

 
Remedies Upon Event of Default
113
8.03

 
Application of Funds
113
ARTICLE IX
ADMINISTRATIVE AGENT
115
9.01

 
Appointment and Authority
115
9.02

 
Rights as a Lender
115
9.03

 
Exculpatory Provisions
115
9.04

 
Reliance by Administrative Agent
116
9.05

 
Delegation of Duties
117
9.06

 
Resignation of Administrative Agent
117
9.07

 
Non-Reliance on Administrative Agent and Other Lenders
118
9.08

 
No Other Duties, Etc
118
9.09

 
Administrative Agent May File Proofs of Claim; Credit Bidding
118
9.10

 
Collateral and Guaranty Matters
120
9.11

 
Secured Cash Management Agreements and Secured Hedge Agreements
121
ARTICLE X
CONTINUING GUARANTY
121
10.01

 
Guaranty
121
10.02

 
Rights of Lenders
122
10.03

 
Certain Waivers
122
 
 
 
 
 
 
 
 
 
 
 
 

 
--v-
 




TABLE OF CONTENTS


10.04

 
Obligations Independent
122
10.05

 
Subrogation
122
10.06

 
Termination; Reinstatement
123
10.07

 
Subordination
123
10.08

 
Stay of Acceleration
123
10.09

 
Condition of Borrower
123
10.10

 
Contribution
123
10.11

 
Guarantors’ Agreement to Pay Enforcement Costs, Etc
124
10.12

 
Keepwell
124
ARTICLE XI
MISCELLANEOUS
125
11.01

 
Amendments, Etc
125
11.02

 
Notices; Effectiveness; Electronic Communications
127
11.03

 
No Waiver; Cumulative Remedies; Enforcement
129
11.04

 
Expenses; Indemnity; Damage Waiver
130
11.05

 
Payments Set Aside
132
11.06

 
Successors and Assigns
132
11.07

 
Treatment of Certain Information; Confidentiality
137
11.08

 
Right of Setoff
138
11.09

 
Interest Rate Limitation
138
11.10

 
Counterparts; Integration; Effectiveness
138
11.11

 
Survival of Representations and Warranties
139
11.12

 
Severability
139
11.13

 
Replacement of Lenders
139
11.14

 
Governing Law; Jurisdiction; Etc
140
11.15

 
Waiver of Jury Trial
141
11.16

 
No Advisory or Fiduciary Responsibility
141
11.17

 
Electronic Execution of Assignments and Certain Other Documents
142
11.18

 
USA PATRIOT Act
142
11.19

 
Entire Agreement
143
11.20

 
[intentionally omitted]
143
11.21

 
Appointment of Borrower
143


 
--vi-
 




SCHEDULES
1.01(a)        Existing Letters of Credit
1.01(b)        Identified Restaurant Closures/Re-Franchisings (2017)
2.01        Commitments and Applicable Percentages
5.06        Litigation
5.08(b)        Real Property (owned and Leased)
5.09        Environmental Compliance
5.12(d)        ERISA Compliance
5.13        Subsidiaries and Other Equity Investments; Loan Parties
5.17        Intellectual Property Matters
5.20        Leases
5.21        Unit Locations; Franchised Unit Locations
5.22        Franchise Agreements
7.01(b)        Existing Liens
7.02        Existing Indebtedness
7.03(f)        Existing Investments
7.09        Burdensome Agreements
11.02        Administrative Agent’s Office, Certain Addresses for Notices

EXHIBITS
Form of
A    Committed Loan Notice
B    Swing Line Loan Notice
C-1    Revolving Credit Note
C-2    Term Loan Note
D    Compliance Certificate
E-1    Assignment and Assumption
E-2    Administrative Questionnaire
F    Form of U.S. Tax Compliance Certificate
G    Form of Notice of Loan Prepayment
H    Form of Increasing Lender Supplement
I    Form of Augmenting Lender Supplement







CREDIT AGREEMENT
This CREDIT AGREEMENT (this “Agreement”) is entered into as of May 9, 2018, among NOODLES & COMPANY, a Delaware corporation (the “Borrower”), each other Loan Party party hereto, each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”), and U.S. BANK NATIONAL ASSOCIATION, as Administrative Agent, L/C Issuer and Swing Line Lender.
PRELIMINARY STATEMENTS:
WHEREAS, the Borrower has requested and the Lenders are willing to make loans and other extensions of credit, including the L/C Issuer to issue letters of credit, to the Borrower, all on the terms and conditions set forth herein; and
NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01     Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:
Administrative Agent” means U.S. Bank in its capacity as sole administrative agent under any of the Loan Documents, or any successor administrative agent appointed in accordance with the terms hereof.
Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 11.02, or such other address or account as the Administrative Agent may from time to time notify to the Borrower and the Lenders.
Administrative Questionnaire” means an Administrative Questionnaire in substantially the form of Exhibit E-2 or any other form approved by the Administrative Agent.
Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
Aggregate Commitments” means the Commitments of all the Lenders.
Agreement” is defined in the introductory paragraph.
Applicable Percentage” means (i) with respect to any Term Lender at any time, the percentage (carried out to the ninth decimal place) of the Term Credit Facility represented by such Term Lender’s Term Loan Commitment at such time, subject to adjustment as provided in Section 2.15 and (ii) with respect to any Revolving Credit Lender at any time, the percentage (carried out





to the ninth decimal place) of the Revolving Credit Facility represented by such Revolving Credit Lender’s Revolving Credit Commitment at such time, subject to adjustment as provided in Section 2.15. If the commitment of each Revolving Credit Lender to make Revolving Credit Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02, or if the Revolving Credit Commitments have expired, then the Applicable Percentage of each Revolving Credit Lender in respect of the Revolving Credit Facility shall be determined based on the Applicable Percentage of such Revolving Credit Lender in respect of the Revolving Credit Facility most recently in effect, giving effect to any subsequent assignments. The initial Applicable Percentage of each Lender in respect of the Facility is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.
Applicable Rate” means, applicable percentage per annum set forth below for each Type of Loan (and for the Letter of Credit Fees and Commitment Fees) determined by reference to the Consolidated Total Lease Adjusted Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(a):

Pricing Level
Consolidated Total Lease Adjusted Leverage Ratio
Eurodollar Rate Loans and Letter of Credit Fees
Base Rate Loans
Commitment Fee
1
<3.25:1.00
2.25%
1.25%
0.30%
2
>3.25:1.00 but <3.75:1.00
2.50%
1.50%
0.35%
3
>3.75:1.00 but <4.25:1.00
2.75%
1.75%
0.40%
4
>4.25:1.00 but <4.75:1.00
3.00%
2.00%
0.45%
5
>4.75:1.00
3.25%
2.25%
0.50%

Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated Total Lease Adjusted Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(a); provided, however, that if a Compliance Certificate is not delivered when due in accordance with such Section, then, Pricing Level 5 shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and shall remain in effect until the date on which such Compliance Certificate is delivered.
Notwithstanding anything to the contrary contained in this definition, (x) from the Closing Date to the date on which the Administrative Agent receives a Compliance Certificate pursuant to Section 6.02(a) for the first full Fiscal Quarter ending after the Closing Date, the Applicable Rate shall be not less than the percentage per annum set forth in Pricing Level 4, and (y) the determination of the Applicable Rate for any period shall be subject to the provisions of Sections 2.08(b) and 2.10.

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Applicable Revolving Credit Percentage” means with respect to any Revolving Credit Lender at any time, such Revolving Credit Lender’s Applicable Percentage in respect of the Revolving Credit Facility at such time.
Applicable Term Loan Credit Percentage” means with respect to any Term Lender at any time, such Term Lender’s Applicable Percentage in respect of the Term Credit Facility at such time.
Appropriate Lender” means, at any time, (a) with respect to the Revolving Credit Facility, a Lender that has a Commitment with respect to such Facility or holds a Revolving Credit Loan, at such time, (b) with respect to the Letter of Credit Sublimit, (i) the L/C Issuer and (ii) if any Letters of Credit have been issued pursuant to Section 2.03(a), the Revolving Credit Lenders and (c) with respect to the Swing Line Sublimit, (i) the Swing Line Lender and (ii) if any Swing Line Loans are outstanding pursuant to Section 2.04(a), the Revolving Credit Lenders.
Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
Arranger” means U.S. Bank (or any other registered broker-dealer wholly-owned by U.S. Bank to which all or substantially all of U.S. Bank’s or any of its subsidiaries’ investment banking, commercial lending services or related businesses may be transferred following the date of this Agreement), in its capacity as sole lead arranger and sole bookrunner.
Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.
Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 11.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit E-1 or any other form (including electronic documentation generated by use of an electronic platform) approved by the Administrative Agent.
Attributable Indebtedness” means, on any date, (a) in respect of any Capitalized Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease or similar payments under the relevant lease or other applicable agreement or instrument that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease or other agreement or instrument were accounted for as a Capitalized Lease and (c) all Synthetic Debt of such Person.
Audited Financial Statements” means the audited consolidated balance sheet of the Borrower and its Subsidiaries for the Fiscal Year ended January 2, 2018, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such Fiscal Year of the Borrower and its Subsidiaries, including the notes thereto.
Augmenting Lender” is defined in Section 2.16.

3




Autoborrow Agreement” has the meaning specified in Section 2.04(b).
Auto-Extension Letter of Credit” has the meaning specified in Section 2.03(b)(iii).
Availability Period” means in respect of the Revolving Credit Facility, the period from and including the Closing Date to the earliest of (i) the Maturity Date, (ii) the date of termination of the Revolving Credit Commitments pursuant to Section 2.06, and (iii) the date of termination of the commitment of each Revolving Credit Lender to make Revolving Credit Loans and Swing Line Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02.
Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced from time to time by U.S. Bank as its “prime rate” and (c) the Eurodollar Rate plus 1.00%; and if the Base Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement. The “prime rate” is a rate set by U.S. Bank based upon various factors including U.S. Bank’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such prime rate announced by U.S. Bank shall take effect at the opening of business on the day specified in the public announcement of such change.
Base Rate Loan” means a Loan that bears interest based on the Base Rate. All Base Rate Loans shall be denominated in Dollars.
Borrower” has the meaning specified in the introductory paragraph hereto.
Borrower Materials” has the meaning specified in Section 6.02.
Borrowing” means a Revolving Credit Borrowing, the advance of the Term Loan, or a Swing Line Borrowing, as the context may require.
Budget” has the meaning specified in Section 6.01(d).
Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office is located and, if such day relates to any interest rate settings as to a Eurodollar Rate Loan denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars in respect of any such Eurodollar Rate Loan, or any other dealings in Dollars to be carried out pursuant to this Agreement in respect of any such Eurodollar Rate Loan, means any such day that is also a London Banking Day.
Capital Expenditures” means, without duplication, any expenditures for any purchase or other acquisition of any asset which would be classified as a fixed or capital asset on a consolidated balance sheet of the Borrower and its Subsidiaries prepared in accordance with GAAP, excluding expenditures made from insurance proceeds paid in connection with property loss or damages to purchase comparable replacement assets.

4




Capitalized Leases” means all leases that have been or should be, in accordance with GAAP, recorded as capitalized leases.
Carry Over Amount” has the meaning specified in Section 7.12.
Cash Collateral Account” means a blocked, non-interest bearing deposit account of one or more of the Loan Parties at U.S. Bank (or another commercial bank selected in compliance with Section 6.19) in the name of the Administrative Agent and under the sole dominion and control of the Administrative Agent, and otherwise established in a manner satisfactory to the Administrative Agent.
Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the Administrative Agent, L/C Issuer or Swing Line Lender (as applicable) and the Lenders, as collateral for L/C Obligations, Obligations in respect of Swing Line Loans or obligations of Lenders to fund participations in respect of either thereof (as the context may require), cash or deposit account balances or, if the L/C Issuer or Swing Line Lender benefiting from such collateral shall agree in its sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to (a) the Administrative Agent and (b) the L/C Issuer or Swing Line Lender (as applicable). “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.
Cash Equivalents” means any of the following types of Investments, to the extent owned by the Borrower or any of its Subsidiaries free and clear of all Liens (other than Liens created under the Collateral Documents):
(a)    readily marketable obligations issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof having maturities of not more than 360 days from the date of acquisition thereof; provided that the full faith and credit of the United States of America is pledged in support thereof;
(b)    time deposits with, or insured certificates of deposit or bankers’ acceptances of, any commercial bank that (i) (A) is a Lender or (B) is organized under the laws of the United States of America, any state thereof or the District of Columbia or is the principal banking subsidiary of a bank holding company organized under the laws of the United States of America, any state thereof or the District of Columbia, and is a member of the Federal Reserve System, (ii) issues (or the parent of which issues) commercial paper rated as described in clause (c) of this definition and (iii) has combined capital and surplus of at least $1,000,000,000, in each case with maturities of not more than 360 days from the date of acquisition thereof;
(c)    commercial paper issued by any Person organized under the laws of any state of the United States of America and rated at least “Prime-1” (or the then equivalent grade) by Moody’s or at least “A-1” (or the then equivalent grade) by S&P, in each case with maturities of not more than 270 days from the date of acquisition thereof; and
(d)    Investments, classified in accordance with GAAP as current assets of the Borrower or any of its Subsidiaries, in money market investment programs registered under the Investment

5




Company Act of 1940, which are administered by financial institutions that have the highest rating obtainable from either Moody’s or S&P, and the portfolios of which are limited solely to Investments of the character, quality and maturity described in clauses (a), (b) and (c) of this definition.
Cash Management Agreement” means any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements.
Cash Management Bank” means any Person that, at the time it enters into a Cash Management Agreement, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Cash Management Agreement.
Catterton Investor” means Catterton-Noodles, LLC, a Delaware limited liability company, together with its Affiliates and associated funds.
CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980.
CERCLIS” means the Comprehensive Environmental Response, Compensation and Liability Information System maintained by the U.S. Environmental Protection Agency.
CFC” means a Person that is a controlled foreign corporation under Section 957 of the Code.
Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law,” regardless of the date enacted, adopted or issued.
Change of Control” means an event or series of events by which:
(a)    any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) other than the Sponsor Investors, becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934), directly or indirectly, of more than 35% of the equity securities of the Borrower entitled to vote for members of the board of directors or equivalent governing body of the Borrower on a fully-diluted basis; or

6




(b)    during any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Borrower cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body; or
(c)    except as permitted under Sections 7.04 and 7.05, the Borrower shall cease, directly or indirectly, to own and control legally and beneficially the percentage of Equity Interests in each Subsidiary set forth on Schedule 5.13.
Closing Date” means the first date all the conditions precedent in Section 4.01 and Section 4.02 are satisfied or waived in accordance with Section 11.01.
Code” means the Internal Revenue Code of 1986, as amended.
Collateral” means all of the “Collateral” referred to in the Collateral Documents and all of the other property that is or is intended under the terms of the Collateral Documents to be subject to Liens in favor of the Administrative Agent for the benefit of the Secured Parties.
Collateral Documents” means, collectively, the Security Agreement, the Pledge Agreements, the Intellectual Property Security Agreements, the Mortgages, if any, each intellectual property security agreement supplement, each of the mortgages, collateral assignments, security agreements, pledge agreements or other similar agreements delivered to the Administrative Agent pursuant to Section 6.12, and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Administrative Agent for the benefit of the Secured Parties.
Commitment” means a Revolving Credit Commitment and the Term Loan Commitment.
Committed Loan Notice” means a notice of (a) a Revolving Credit Borrowing and on the Closing Date the initial advance of the Term Loan, (b) a conversion of Loans from one Type to the other, or (c) a continuation of Eurodollar Rate Loans, pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit A or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.
Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
Compliance Certificate” means a certificate substantially in the form of Exhibit D.

7




Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
Consolidated Adjusted Cash Rental Expense” means, as of the date of determination, for any relevant Measurement Period, Consolidated Cash Rental Expense for such Measurement Period multiplied by six (6).
Consolidated Cash Rental Expense” means, as of the date of determination, for the relevant Measurement Period, all cash rental expense of the Borrower and its Subsidiaries for such Measurement Period, determined on a consolidated basis, incurred under any rental agreements or leases, including any cash rental expense attributable to the Identified Restaurant Closures/Re-Franchisings (2017) whether or not included in calculating Consolidated Net Income, other than (i) obligations in respect of any Capitalized Leases and Synthetic Lease Obligations, (ii) any cash rental expense incurred during such Measurement Period for the 16 Restaurant locations that closed in the fourth Fiscal Quarter of the Borrower of 2015, or (iii) any cash rental expense incurred during such Measurement Period attributable to the Identified Restaurant Closures/Re-Franchisings (2017) for which the Lease associated with the applicable closed or refranchised Restaurant is actually and effectively terminated or transferred or assigned to a Person that is not an Affiliate.
Consolidated EBITDA” means, at any date of determination, an amount equal to Consolidated Net Income of the Borrower and its Subsidiaries on a consolidated basis for the most recently completed Measurement Period plus (a) the following to the extent deducted in calculating such Consolidated Net Income and without duplication: (i) Consolidated Interest Charges, (ii) the provision for Federal, state, local and foreign income taxes paid or payable, (iii) depreciation and amortization expense, (iv) Consolidated Restaurant Pre-Opening Costs in an amount not to exceed an average of $85,000 per Restaurant for all Restaurants incurred during such Measurement Period, (v) non-cash rent expense, (vi) non-cash compensation expense, (vii) non-recurring expenses or charges (or minus non-recurring income items) reducing (or in the case of non-recurring income, increasing) such Consolidated Net Income, in each case, which do not represent a cash item in such period or any future period, (viii) without duplication of any add backs pursuant to clause (vii) above, (A) non-recurring cash expenses (including severance payments) or charges and non-recurring non-cash charges, and (B) pro forma general and administrative cash cost savings resulting from headcount reductions in Fiscal Years 2017 and 2018, on a combined basis as to clauses (A) and (B) in an aggregate amount not to exceed $2,000,000 in any Measurement Period, (ix) one time fees and out of pocket expenses incurred in connection with Permitted Acquisitions, (x) fees and expenses arising from the Transaction or any follow-on public offering, sale or registration of the Borrower’s securities, (xi) without duplication of any other amounts herein, one-