Item 1.01. Entry into a Material Definitive Agreement
Completion of Separation of Victoria’s Secret from Bath &
Body Works
On August 2, 2021 (the “Distribution Date”), after the
New York Stock Exchange market closing, the previously-announced separation (the “Separation”) of Victoria’s Secret & Co. (“Victoria’s Secret”) from Bath & Body Works, Inc. (formerly known as L Brands, Inc.) (“Bath & Body Works”) was
completed. The separation of Victoria’s Secret, which comprises Victoria’s Secret Lingerie, PINK and Victoria’s Secret Beauty (the “Spin Business”), was achieved through Bath & Body Works’ distribution (the “Distribution”) of 100% of the shares
of Victoria’s Secret common stock to holders of Bath & Body Works common stock as of the close of business on the record date of July 22, 2021 (the “Record Date”). Bath & Body Works stockholders of record received one share of Victoria’s
Secret common stock for every three shares of Bath & Body Works common stock. Following the Distribution, Victoria’s Secret became an independent, publicly-traded company, and Bath & Body Works retains no ownership interest in Victoria’s
Secret.
In connection with the Separation, Victoria’s Secret
entered into several agreements with Bath & Body Works on August 2, 2021 that, among other things, effect the Separation and provide a framework for its relationship with Bath & Body Works after the Separation, including the following
agreements:
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A Separation and Distribution Agreement;
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A Tax Matters Agreement;
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An L Brands to VS Transition Services Agreement;
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A VS to L Brands Transition Services Agreement;
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An Employee Matters Agreement; and
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A Domestic Transportation Services Agreement.
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Separation and Distribution Agreement
The Separation and
Distribution Agreement governs the overall terms of the Separation. Generally, the Separation and Distribution Agreement includes Bath & Body Works’ and Victoria’s Secret’s agreements relating to the restructuring steps taken to complete the
Separation, including the assets and rights transferred, liabilities assumed and related matters.
The Separation and
Distribution Agreement provides for Bath & Body Works and Victoria’s Secret to transfer specified assets between the companies that operate the Spin Business after the Distribution, on the one hand, and Bath & Body Works’ remaining
businesses, on the other hand. The Separation and Distribution Agreement requires Bath & Body Works and Victoria’s Secret to use commercially reasonable efforts to obtain consents, approvals and amendments required to assign the assets and
liabilities transferred pursuant to the Separation and Distribution Agreement.
Unless otherwise provided in
the Separation and Distribution Agreement or any of the related ancillary agreements, all assets were transferred on an “as is, where is” basis. Generally, if the transfer of any assets or any claim or right or benefit arising thereunder required a
consent that was not obtained before the Distribution, or if the transfer or assignment of any such asset or such claim or right or benefit arising thereunder was ineffective, adversely affected the rights of the transferor thereunder or was in
violation of any applicable law, the party retaining any asset that otherwise would have been transferred shall hold such asset in trust for the use and benefit of the party entitled thereto and retain such liability for the account of the party by
whom such liability is to be assumed, and take such other action in order to place such party, insofar as reasonably possible, in the same position as would have existed had such asset or liability been transferred prior to the Distribution.
In addition, Victoria’s
Secret also grants and receives licenses under certain intellectual property in connection with the Separation and Distribution Agreement, which generally provides Victoria’s Secret and Bath & Body Works the freedom to continue operating their
respective businesses following the Distribution, including as follows:
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Victoria’s Secret grants Bath & Body Works a non-exclusive, worldwide, perpetual, irrevocable, fully paid-up and royalty-free license to certain intellectual property transferred to
Victoria’s Secret in connection with the Separation but used by Bath & Body Works in its business as of the Distribution in order for Bath & Body Works to continue operating its business.
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Victoria’s Secret receives from Bath & Body Works a non-exclusive, worldwide, perpetual, irrevocable, fully paid-up and royalty-free license to certain intellectual property retained by
Bath & Body Works but used in the Spin Business as of the Distribution in order for Victoria’s Secret to continue operating the Spin Business.
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In addition, the Separation
and Distribution Agreement governs the treatment of indemnification, insurance and litigation responsibility and management. Generally, the Separation and Distribution Agreement provides for uncapped cross-indemnities principally designed to place
financial responsibility for the obligations and liabilities of the Spin Business with Victoria’s Secret and financial responsibility for the obligations and liabilities of Bath & Body Works’ retained businesses with Bath & Body Works. The
Separation and Distribution Agreement also establishes procedures for handling claims subject to indemnification and related matters.
Tax Matters Agreement
The Tax Matters Agreement governs the parties’
respective rights, responsibilities and obligations with respect to taxes, including taxes arising in the ordinary course of business, and taxes, if any, incurred as a result of the failure of the Distribution (and certain related transactions) to
qualify for tax-free treatment for U.S. federal income tax purposes. The Tax Matters Agreement also sets forth the respective obligations of the parties with respect to the filing of tax returns, the administration of tax contests and assistance and
cooperation on tax matters.
In general, the Tax Matters Agreement governs the
rights and obligations that Victoria’s Secret and Bath & Body Works have after the Separation with respect to taxes for both pre- and post-closing periods. Under the Tax Matters Agreement, Bath &
Body Works is generally responsible for all of Victoria’s Secret’s pre-closing taxes that are reported on combined tax returns with Bath & Body Works or any of its affiliates, all of Victoria’s Secret’s pre-closing income taxes that are reported
on tax returns that include only Victoria’s Secret and/or Victoria’s Secret subsidiaries (“separate tax returns”) for taxable years that end before the Separation and all of Victoria’s Secret pre-closing non-income taxes that are reported on separate
tax returns. Victoria’s Secret is generally responsible for all other taxes that are reported on separate tax returns.
In the Tax Matters Agreement, Victoria’s Secret also
agreed to certain covenants that contain restrictions intended to preserve the tax-free treatment of the Distribution. Victoria’s Secret may take certain actions prohibited by these covenants only if Victoria’s Secret obtains and provides to Bath
& Body Works a ruling from the Internal Revenue Service or an opinion from a tax adviser acceptable to Bath & Body Works in its sole discretion, in each case, to the effect that such action will not jeopardize the tax-free treatment of these
transactions, or if Victoria’s Secret obtains prior written consent of Bath & Body Works, in its sole and absolute discretion, waiving such requirement. Victoria’s Secret will be barred from taking any action, or failing to take any action, where
such action or failure to act adversely affects or could reasonably be expected to adversely affect the tax-free treatment of the Distribution, for all relevant time periods. In addition, these covenants will include specific restrictions on
Victoria’s Secret:
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Discontinuing the active conduct of Victoria’s Secret’s trade or business;
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Issuance or sale of stock or other securities (including securities convertible into Victoria’s Secret stock but excluding certain compensatory arrangements);
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Amending Victoria’s Secret’s certificate of incorporation (or other organizational documents) or take any other action, whether through a stockholder vote or otherwise,
affecting the voting rights of Victoria’s Secret’s common stock; and
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Entering into certain corporate transactions that could jeopardize the tax-free treatment of the Distribution.
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Victoria’s Secret generally agreed to indemnify Bath
& Body Works against any and all tax-related liabilities incurred by them relating to the Distribution to the extent caused by any action undertaken by Victoria’s Secret. The indemnification will apply even if Bath & Body Works has permitted
Victoria’s Secret to take an action that would otherwise have been prohibited under the tax-related covenants described above.
L Brands to VS Transition Services Agreement
The L Brands to VS Transition Services Agreement sets
forth the terms on which Bath & Body Works provides to Victoria’s Secret, on a transitional basis, certain services or functions that the companies historically have shared. The transition services include various services or functions, many of
which currently use a shared technology platform, including human resources, payroll, certain logistics functions and information technology services, generally for a period of up to two years following the Distribution for all such services other
than information technology services, which will be provided for a period of up to three years following the Distribution, but may be extended for a maximum of two additional one-year periods subject to increased administrative charges. Compensation
for the transition services will be determined using several billing methodologies which are described in the agreement, including customary billing, pass-through billing, percent of sales billing or fixed fee billing. The L Brands to VS Transition
Services Agreement provides that Victoria’s Secret may, subject to certain conditions, terminate any or all of the services, or any part of a service, upon 60 days’ prior written notice to Bath & Body Works. Bath & Body Works may, subject to
certain conditions, terminate a service if the performance of such service subjects Bath & Body Works to a reasonable risk of violating applicable law or would reasonably be expected to materially and adversely affect Bath & Body Works’
business, in each case upon providing Victoria’s Secret with reasonable prior written notice. Victoria’s Secret indemnifies Bath & Body Works from liabilities for claims arising from the L Brands to VS Transition Services Agreement, including
Bath & Body Works’ provision of the services, Victoria’s Secret’s use of the services or breach of the agreement, or from Victoria’s Secret’s gross negligence, fraud or willful misconduct. Bath & Body Works indemnifies Victoria’s Secret from
liabilities for claims arising from Bath & Body Works’ breach of the agreement or from Bath & Body Works’ gross negligence, fraud or willful misconduct. Subject to certain customary exceptions, Bath & Body Works’ maximum aggregate
liability under the L Brands to VS Transition Services Agreement is limited to the fees actually received by Bath & Body Works under the agreement, provided that, for liabilities related to data privacy, cybersecurity or similar matters, if Bath
& Body Works is able to recover a greater amount from its third-party service providers, it will pass through such excess recovery to Victoria’s Secret on a pro-rata basis.
VS to L Brands Transition Services Agreement
The VS to L Brands Transition Services Agreement sets
forth the terms on which Victoria’s Secret provides to Bath & Body Works, on a transitional basis, certain services or functions transferred to Victoria’s Secret in connection with the Separation that the companies have historically shared. The
transition services include various services or functions, including information technology, certain logistics functions, customer marketing and customer call center services, generally for a period of up to two years following the Distribution for
all such services other than information technology and internal audit services, which will be provided for a period of up to three years following the Distribution, but, in the case of information technology services, may be extended for a maximum
of two additional one-year periods subject to increased administrative charges. Compensation for the transition services will be determined using several billing methodologies which are described in the agreement, including customary billing,
pass-through billing, percent of sales billing or fixed fee billing. The VS to L Brands Transition Services Agreement provides that Bath & Body Works may, subject to certain conditions, terminate any or all of the services, or any part of a
service, upon 60 days’ prior written notice to Victoria’s Secret. Victoria’s Secret may, subject to certain conditions, terminate a service if the performance of such service subjects Victoria’s Secret to a reasonable risk of violating applicable law
or would reasonably be expected to materially and adversely affect the Spin Business, in each case upon providing Bath & Body Works with reasonable prior written notice. Bath & Body Works indemnifies Victoria’s Secret from liabilities for
claims arising from the VS to L Brands Transition Services Agreement, including Victoria’s Secret’s provision of the services, Bath & Body Works’ use of the services or breach of the agreement, or from Bath & Body Works’ gross negligence,
fraud or willful misconduct. Victoria’s Secret indemnifies Bath & Body Works from liabilities for claims arising from Victoria’s Secret’s breach of the agreement or from Victoria’s Secret’s gross negligence, fraud or willful misconduct. Subject
to certain customary exceptions, Victoria’s Secret’s maximum aggregate liability under the VS to L Brands Transition Services Agreement is limited to the fees actually received by Victoria’s Secret under the agreement, provided that, for liabilities
related to data privacy, cybersecurity or similar matters, if Victoria’s Secret is able to recover a greater amount from its third-party service providers, it will pass through such excess recovery to Bath & Body Works on a pro-rata basis.
Employee Matters Agreement
The Employee Matters Agreement governs each company’s
respective compensation and benefit obligations with respect to current and former employees, directors and consultants. The Employee Matters Agreement sets forth general principles relating to employee matters in connection with the Separation, such
as the assignment of employees, the assumption and retention of liabilities and related assets, expense reimbursements, workers’ compensation, leaves of absence, the provision of comparable benefits, employee service credit, the sharing of employee
information and duplication or acceleration of benefits.
The Employee Matters Agreement generally allocates
liabilities and responsibilities relating to employment, compensation and benefits-related matters, with (i) Bath & Body Works generally retaining liabilities (both pre- and post-Distribution) and responsibilities with respect to (a) Bath &
Body Works employees and participants who will remain with (or who will otherwise transfer to) Bath & Body Works and former employees who were last actively employed by Bath & Body Works primarily in its business and (b) benefit plans and
programs sponsored by Bath & Body Works and (ii) Victoria’s Secret generally assuming liabilities (both pre- and post-Distribution) and responsibilities with respect to (a) employees and participants who will transfer with Victoria’s Secret in
connection with the Separation and former employees who were last actively employed primarily in the Spin Business and (b) benefit plans and programs sponsored by Victoria’s Secret. The Employee Matters Agreement provides that, following the
Distribution, Victoria’s Secret active employees generally will no longer participate in benefit plans sponsored or maintained by Bath & Body Works and will commence participation in Victoria’s Secret benefit plans, subject to the terms of the L
Brands to VS Transition Services Agreement.
In addition, during the 24-month period following the
Separation (or, for employees providing transition services under the L Brands to VS Transition Services Agreement or the VS to L Brands Transition Services Agreement, as applicable, through the date on which the applicable transition service period
ends, if later), each of Bath & Body Works and Victoria’s Secret will be subject to mutual nonsolicit and no-hire restrictions, subject to certain exceptions set forth in the Employee Matters Agreement.
Effective on or prior to the Distribution, except as
otherwise expressly provided in the Employee Matters Agreement, the L Brands to VS Transition Services Agreement or otherwise agreed between Bath & Body Works and Victoria’s Secret, to the extent not already employed by Victoria’s Secret or one
of its applicable subsidiaries, the employment of each Victoria’s Secret employee has been transferred to Victoria’s Secret or one of its applicable subsidiaries, and Victoria’s Secret or one of its subsidiaries will generally assume responsibility
for any individual employment, retention, severance or similar agreements applicable to such Victoria’s Secret employee. Any employees who transfer to Victoria’s Secret following the Distribution Date (including in connection with any transition
services) will be deemed a Victoria’s Secret employee as of the date of such transfer, and any employees who transfer from Victoria’s Secret to Bath & Body Works following the Distribution (including in connection with any transition services)
will be deemed a Bath & Body Works employee as of the date of such transfer.
Each Victoria’s Secret employee participating in a
cash bonus plan maintained by Bath & Body Works in respect of the spring 2021 performance period will remain eligible to receive such cash bonus award, subject to the terms of the applicable bonus plan and actual achievement of applicable
performance goals determined as of the end of the performance period. The actual spring 2021 cash bonuses payable to Victoria’s Secret employees will be paid by Victoria’s Secret in accordance with the terms of the applicable Bath & Body Works
cash bonus plan, and Bath & Body Works will reimburse Victoria’s Secret for the aggregate cost of the Spring 2021 bonuses paid by Victoria’s Secret to Victoria’s Secret employees.
The Employee Matters Agreement also sets forth the
treatment of any outstanding equity awards. Specifically, in connection with the Separation, (i) outstanding Bath & Body Works’ equity awards held by individuals who will continue to be employed by or provide services to Bath & Body Works’ as
well as former Victoria’s Secret employees will be equitably adjusted to reflect the difference in the value of Bath & Body Works’ common stock before and after the Distribution in a manner that is intended to preserve the overall intrinsic value
of the awards by taking into account the relative value of Bath & Body Works’ common stock before and after the Distribution, and (ii) outstanding Bath & Body Works’ equity awards held by individuals who are then-currently employed by or
otherwise providing services to Victoria’s Secret, or whose employment or engagement will be transferred to Victoria’s Secret in connection with and prior to the Separation, will be converted into equity awards that will be settled in shares of
Victoria’s Secret common stock in a manner intended to equitably preserve the overall intrinsic value of the converted equity awards by taking into account the relative value of Bath & Body Works’ common stock before the Distribution and the
value of Victoria’s Secret common stock after the Distribution.
In addition, any Bath & Body Works’ equity awards
held by employees who are intended to transfer to Victoria’s Secret following the Distribution Date (including in connection with any transition services) will be treated in the same manner as other Bath & Body Works’ employees on the
Distribution Date, as described above. Upon the transfer of their employment to Victoria’s Secret following the Distribution Date, Victoria’s Secret will be required to grant such employees Victoria’s Secret equity awards to replace any Bath &
Body Works’ equity awards forfeited by such employees in connection with the transfer of their employment. These replacement Victoria’s Secret equity awards will have a value intended to equal the intrinsic value of the applicable forfeited Bath
& Body Works’ equity awards, determined in the manner set forth in the Employee Matters Agreement. Any Victoria’s Secret equity awards held by employees who are intended to transfer to Bath & Body Works following the Distribution Date
(including in connection with any transition services) will be forfeited. Upon the transfer of their employment to Bath & Body Works following the Distribution Date, Bath & Body Works will be required to grant such employees Bath & Body
Works equity awards to replace any Victoria’s Secret equity awards forfeited by such employees in connection with the transfer of their employment. These replacement Bath & Body Works’ equity awards will have a value intended to equal the
intrinsic value of the applicable forfeited Victoria’s Secret equity awards, determined in the manner set forth in the Employee Matters Agreement.
The Employee Matters
Agreement also provides that (i) the Distribution does not constitute a change in control under Bath & Body Works’ or Victoria’s Secret’s plans, programs, agreements or arrangements and (ii) the Distribution and the assignment, transfer or
continuation of the employment of employees with another entity will not constitute a severance event under applicable plans, programs, agreements or arrangements.
Domestic Transportation Services Agreement
The Domestic Transportation Services Agreement
provides that Bath & Body Works’ subsidiary will continue to provide transportation services for certain personal care and apparel merchandise of the Spin Business in the United States and Canada for an initial term of three years following the
Distribution, which term will thereafter continuously renew unless and until Victoria’s Secret or Bath & Body Works’ subsidiary elect to terminate the arrangement upon 18 or 36 months’ prior written notice, respectively. Compensation for the
transportation services will be determined using customary billing and fixed fee billing methodologies, which are described in the agreement, and will be subject to an administrative charge. Bath & Body Works’ subsidiary indemnifies Victoria’s
Secret from liabilities for claims arising from such subsidiary’s breach of the agreement, such subsidiary’s violation of applicable law or such subsidiary’s gross negligence, fraud or willful misconduct. Victoria’s Secret indemnifies Bath & Body
Works’ subsidiary from liabilities for claims arising from Victoria’s Secret’s use of the services or breach of the agreement, the merchandise of the Spin Business subject to the agreement, Victoria’s Secret’s violation of applicable law or
Victoria’s Secret’s gross negligence, fraud or willful misconduct. Subject to certain customary exceptions, the maximum aggregate liability of each of Victoria’s Secret and Bath & Body Works’ subsidiary under the Domestic Transportation Services
Agreement in any calendar year is limited to $7,500,000. Bath & Body Works’ subsidiary’s maximum liability for lost, damaged, destroyed or stolen Victoria’s Secret products under the agreement is $250,000 per occurrence, provided that if Bath
& Body Works’ subsidiary recovers a greater amount under its third-party service provider contracts, it will pass through such excess recovery to Victoria’s Secret, or $5,000,000 per calendar year.
Other Agreements
Victoria’s Secret also entered into certain other
commercial arrangements with Bath & Body Works in connection with the Separation. These commercial arrangements include a campus security and emergency operations services agreement pursuant to which Victoria’s Secret or a subsidiary thereof
continues to provide campus security and emergency operations services for Bath & Body Works for an initial term of three years following the Distribution, which term will thereafter continuously renew unless and until Victoria’s Secret or Bath
& Body Works elect to terminate the arrangement upon 12 months’ prior notice. In addition, Victoria’s Secret and Bath & Body Works entered into agreements relating to the ownership, management, maintenance, support and use of certain shared
aircraft, pursuant to which Bath & Body Works operates the aircraft and allocates to the Spin Business its share of the operating costs. Victoria’s Secret and Bath & Body Works also entered into an agreement pursuant to which Bath & Body
Works leases to Victoria’s Secret a portion of one of Bath & Body Works’ distribution centers and an agreement pursuant to which Bath & Body Works grants Victoria’s Secret a limited, non-exclusive, royalty-bearing license to use certain Bath
& Body Works formulas relating to certain candle bases in certain Victoria’s Secret candle products for up to two years following the Distribution. These agreements modify historical intercompany arrangements, and Bath & Body Works does not
believe such commercial arrangements are material.
Credit Agreement
On August 2, 2021, Bath & Body Works also entered
into an amendment and restatement of its senior secured asset-based revolving credit facility (the “ABL Facility”). Borrowings under the ABL Facility will mature, and lending commitments thereunder will terminate, five years after the amendment and
restatement of the ABL Facility; provided that in the event that (i) specified excess availability under the ABL Facility for each of the 60 days immediately preceding and each of the 60 days succeeding the maturity date for a series of Bath &
Body Works senior notes with an outstanding principal amount at such time exceeding $25 million (the “Subject Notes”) is less than $200 million (calculated on a pro forma basis for the repayment of the Subject Notes) and (ii) the ratio of
Consolidated EBITDAR to Consolidated Fixed Charges (as defined in the ABL Facility) for the most recent period of four consecutive fiscal quarters is less than 1.10:1.00 (calculated on a pro forma basis for the repayment of the Subject Notes), then
the maturity date shall be the date that is 91 days prior to the scheduled maturity date of such series of Senior Notes. The ABL Facility allows Bath & Body Works to borrow and obtain, subject to a letter of credit sublimit, letters of credit in
U.S. dollars or Canadian dollars in amounts available to be drawn from time to time equal to the lesser of (i) the borrowing base, which equals the sum of 95.0% of eligible credit card receivables, 85.0% of eligible accounts receivable, 90.0% of the
net orderly liquidation value of eligible inventory, 50.0% of the net orderly liquidation value of eligible component inventory and 50% of eligible real property (up to the lesser of (x) $150 million and (y) 25.0% of the borrowing base), subject, in
each case, to customary eligibility criteria and reserves established by the collateral agent under the ABL Facility from time to time, and (ii) the aggregate revolving credit commitments, which were $750,000,000 as of the amendment and restatement
date. Interest on the loans under the ABL Facility will be calculated by reference to (x) LIBOR or an alternative base rate and (y) in the case of loans denominated in Canadian dollars, Canadian Dollar Offered Rate (“CDOR”) or a Canadian base rate,
plus an interest rate margin based on average daily excess availability ranging from (i) in the case of LIBOR and CDOR loans, 1.25% to 1.75% and (ii) in the case of alternate base rate loans and Canadian base rate loans, 0.25% to 0.75%. Unused
commitments under the ABL Facility will accrue an unused commitment fee ranging from 0.25% to 0.30%.
Bath & Body Works’ obligations under the ABL
Facility (as well as any obligation of Bath & Body Works or any ABL Guarantor (as defined below) in respect of hedging arrangements, cash management arrangements, open account agreements (subject to a cap) and certain separate letters of credit
(subject to a cap), in each case, with any of the lenders thereunder or their respective affiliates) (collectively, the “ABL Obligations”) are guaranteed (the “ABL Guarantees”) by Bath & Body Works’ existing and future domestic and Canadian
wholly-owned material consolidated subsidiaries, subject to customary exceptions (the “ABL Guarantors”). The ABL Obligations are secured by first priority liens on, among other things, credit card receivables, accounts receivable, deposit accounts,
inventory and, at Bath & Body Works’ election, real property (collectively, the “ABL Priority Collateral”), and second-priority liens on substantially all other assets of Bath & Body Works and the ABL Guarantors, including intellectual
property, but subject to customary exceptions (collectively, the “Non-ABL Priority Collateral”). The ABL Guarantees and security interests in the assets of an ABL Guarantor may be released where such ABL Guarantor ceases to be a consolidated
subsidiary of Bath & Body Works pursuant to a transaction permitted under the ABL Facility.
The ABL Facility contains various covenants, including
those that restrict Bath & Body Works’ ability and the ability of its consolidated subsidiaries to incur certain indebtedness or to grant certain liens on their respective property or assets. The ABL Facility includes a financial maintenance
covenant that requires Bath & Body Works to maintain a 1.00:1.00 consolidated EBITDAR to consolidated fixed charges ratio that is tested during the continuation of any specified event of default or any period (i) commencing on any day when
specified excess availability is less than the greater of (x) $70 million and (y) 10.0% of the maximum borrowing amount and (ii) ending after specified excess availability has been greater than the amount set forth in clause (i) above for 30
consecutive calendar days.
The ABL Facility was undrawn at the Separation. As of
July 3, 2021, on an as adjusted basis to give effect to (i) the Separation and (ii) the establishment of the ABL Facility, Bath & Body Works estimates that it would have had a borrowing base of approximately $528 million and availability under
the ABL Facility of $509 million, after considering letters of credit of $19 million.
The foregoing descriptions are summaries of the
material terms of these agreements and are not complete and are subject to, and qualified in their entirety by, the complete text of these agreements which are filed with this Current Report on Form 8-K as Exhibits 2.1, 10.1, 10.2, 10.3, 10.4, 10.5
and 10.6, each of which is incorporated by reference in this Item 1.01.