OUTFRONT Media Inc 8-K, filed Aug 4, 2021
OUTFRONT Media Inc. (OUT)
8-K
2021-08-04
For: 2021-08-04
View Original
Added on
April 11, 2026
About this 8-K
OUTFRONT Media Inc filed this 8-K on August 4, 2021.
Items reported
- Item 1.01: Entered into a material agreement
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________
FORM 8-K
__________________________
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of report (Date of earliest event reported): August 4, 2021 (July 29, 2021)
_________________________
(Exact name of registrant as specified in its charter)
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(State or other jurisdiction of incorporation) | (Commission File Number) | (IRS Employer Identification Number) | ||||||||||||
(Address of principal executive offices) | (Zip Code) | ||||||||||
Registrant’s telephone number, including area code: (212 ) 297-6400
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
Securities registered pursuant to Section 12(b) of the Act:
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company | |||||
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. ☐
Item 1.01 | Entry into a Material Definitive Agreement. | ||||
On July 29, 2021, a subsidiary of OUTFRONT Media Inc. (the “Company”) entered into an amendment (the “Amendment”) to its advertising license agreement, entered into on December 8, 2017 but effective as of November 1, 2017 (the “Original Agreement,” and as amended, supplemented or otherwise modified, the “MTA Agreement”), with the Metropolitan Transportation Authority (the “MTA”).
The Amendment increases the initial ten-year term of the Original Agreement to a 13-year initial term, with all time-based events in the Original Agreement correspondingly adjusted by three years. The Company continues to have the option to extend the MTA Agreement for an additional five-year period at the end of the 13-year initial term, subject to satisfying certain quantitative and qualitative conditions.
Pursuant to the Amendment, the Company’s deployment obligations with respect to digital displays for advertising have been reduced and optimized, and the Company is now obligated to deploy, over a number of years, (i) 5,433 digital advertising screens on subway and train platforms and entrances, (ii) 15,896 smaller-format digital advertising screens on rolling stock, and (iii) 9,283 MTA communications displays, subject to any modifications agreed to by the Company and the MTA.
The Company is also obligated to deploy certain additional digital advertising screens and MTA communications displays in subway and train stations and rolling stock that the MTA may build or acquire in the future (collectively, the “New Inventory”). Under the Amendment, if the Company does not recoup all costs of deploying advertising and communications screens with respect to the New Inventory by the end of the term of the MTA Agreement, the MTA will be obligated to reimburse the Company for these costs.
The Amendment also provides that if prior to April 1, 2028 the balance of unrecovered costs of deploying advertising and communications screens throughout the transit system is equal to or less than zero, then in any year following the year in which such recoupment occurs (the “Recoupment Year”), the MTA is entitled to receive an additional payment equal to 2.5% of the annual base revenue amount for such year calculated in accordance with the MTA Agreement, provided that gross revenues in such year (i) were at least equal to the gross revenues generated in the Recoupment Year, and (ii) did not decline by more than 5% from the prior year. Deployment costs in an amount not to exceed $50.7 million, which are deemed authorized before December 31, 2020, will be paid directly by the MTA. For any deployment costs deemed authorized after December 31, 2020, the MTA and the Company will no longer be obligated to directly pay 70% and 30% of the costs, respectively, and these costs will be subject to recoupment in accordance with the MTA Agreement.
The remaining terms of the Original Agreement remain unchanged, and the changes to the Original Agreement set forth in the Amendment are the Company’s sole remedy under the MTA Agreement with respect to impact of the COVID-19 pandemic.
The foregoing description of the Amendment does not purport to be complete, and is qualified in its entirety by reference to the full text of the Amendment, a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Cautionary Statement Regarding Forward-Looking Statements
The Company has made statements in this Current Report on Form 8-K that are forward-looking statements within the meaning of the federal securities laws, including the Private Securities Litigation Reform Act of 1995. You can identify forward-looking statements by the use of forward-looking terminology such as “will” or the negative of these words and phrases or similar words or phrases that are predictions of or indicate future events or trends and that do not relate solely to historical matters. You can also identify forward-looking statements by discussions of strategy, plans or intentions related to the MTA Agreement (including the Amendment). Forward-looking statements involve numerous risks and uncertainties and you should not rely on them as predictions of future events. Forward-looking statements depend on assumptions, data or methods that may be incorrect or imprecise and may not be able to be realized. The Company does not guarantee that the transactions and events described will happen as described (or that they will happen at all). The following factors, among others, could cause actual results and future events to differ materially from those set forth or contemplated in the forward-looking statements: declines in advertising and general economic conditions, including declines caused by the novel coronavirus (“COVID-19”) pandemic; the severity and duration of the COVID-19 pandemic and any other pandemics, and the impact on our business, financial condition and results of operations; competition; government regulation; our ability to implement our
digital display platform and deploy digital advertising displays to our transit franchise partners, including interruptions and reductions in demand caused by the impact of the COVID-19 pandemic; losses and costs resulting from recalls and product liability, warranty and intellectual property claims; our ability to obtain and renew key municipal contracts on favorable terms; content-based restrictions on outdoor advertising; seasonal variations; changes in regulations and consumer concerns regarding privacy, information security and data, or any failure or perceived failure to comply with these regulations or our internal policies; asset impairment charges for our long-lived assets and goodwill; our substantial indebtedness; restrictions in the agreements governing our indebtedness; incurrence of additional debt; our failure to remain qualified to be taxed as a real estate investment trust (“REIT”); and other factors described in our filings with the Securities and Exchange Commission (the “SEC”), including but not limited to the section entitled “Risk Factors” in our Annual Report on Form 10-K for the year ended December 31, 2020, filed with the SEC on February 26, 2021. All forward-looking statements in this Current Report on Form 8-K apply as of the date of this report or as of the date they were made and, except as required by applicable law, we disclaim any obligation to publicly update or revise any forward-looking statement to reflect changes in underlying assumptions or factors of new information, data or methods, future events or other changes.
Item 9.01 | Financial Statements and Exhibits. | ||||
(d) Exhibits. The following exhibits are filed herewith:
| Exhibit Number | Description | |||||||
| 10.1 | Amendment No. 7, dated as of July 29, 2021, by and between the Metropolitan Transportation Authority and Outfront Media Group LLC, to Advertising License Agreement, entered into December 8, 2017 (effective as of November 1, 2017). | |||||||
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). | |||||||
EXHIBIT INDEX
| Exhibit Number | Description | |||||||
| 10.1 | ||||||||
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). | |||||||
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
OUTFRONT MEDIA INC. | ||||||||||||||
By: | /s/ Matthew Siegel | |||||||||||||
Name: | Matthew Siegel | |||||||||||||
Title: | Executive Vice President and | |||||||||||||
Chief Financial Officer | ||||||||||||||
Date: August 4, 2021
Exhibit 10.1
Metropolitan Transportation Authority 2 Broadway New York, New York 10004 | Outfront Media Group LLC 405 Lexington Avenue New York, NY 10174 | ||||
The Metropolitan Transportation Authority (the “MTA”) and Outfront Media Group LLC, a limited liability company organized and existing under the laws of Delaware (the “Concessionaire”) (each a “Party” and together the “Parties”), hereby execute this Letter Agreement (“Letter Agreement No. 7”) as of July 29, 2021 (the “Letter Agreement Effective Date”), which modifies and supplements the License Agreement, as such term is defined below.
1.Definitions.
The capitalized terms in this Letter Agreement No. 7 that are not otherwise defined shall have the meanings given to them in the License Agreement. The term “License Agreement” means that certain Advertising License Agreement made by and between the Parties.
2.Adjustments to Deployment Scope.
2.1.General.
2.1.1.Exhibit 2 (Annual Required Installation Schedule) to the License Agreement is hereby amended and restated in its entirety to read as set forth on Exhibit A to this Letter Agreement No. 7 (the “Amended and Restated Exhibit 2”), and this Amended and Restated Exhibit 2 shall be made part of the License Agreement.
2.1.2.Although Amended and Restated Exhibit 2 specifies a particular number of Communication Devices of each specific type per station for each Agency, MTA may choose to reallocate Agency Messaging-Only Communication Devices within a certain type to other stations within the applicable Agency, including new stations, at its discretion, provided that any reallocations are subject to supply chain availability and current lead times and so long as the total number of Agency Messaging-Only Communications devices of that type is equal to or under the total number of that type set forth in Amended and Restated Exhibit 2. If MTA requests any Agency Messaging-Only Communication Devices in excess of the aggregate number designated for each Agency by screen type as set forth in Amended and Restated Exhibit 2, MTA will be responsible for the cost of such excess Communication Devices in accordance with Section 13.1.2 (Certain Additional Work and Deliverables) of the Master TCs.
2.1.3.To the extent that Concessionaire has not already resumed installations, Concessionaire agrees to resume installations immediately in accordance with the Amended and Restated Exhibit 2. MTA acknowledges that there will be a ramp-up period necessary for both in-station and in-car deployments, the length of which will depend on available inventory, availability of installation and construction management personnel, and ordinary course preparatory work (bidding, submitting flagging requests, etc.).
2.1.4.Consistent with current practice, Concessionaire will place orders for Communication Devices to support the agreed upon Annual Required Installation Schedule and to provide Maintenance Services and Refresh Services in accordance with Section 3.5 of the Master TCs.
Letter Agreement No. 7 to License Agreement
2.1.5.The MTA will provide Agency Force Account Services in accordance with the License Agreement as necessary for the Concessionaire to meet its Annual Required Communications System Installation Obligations as modified by this Letter Agreement No. 7.
2.2.NYCT In-Station Deployments.
2.2.1.Concessionaire will continue deployment as planned in all NYCT stations in accordance with the Amended and Restated Exhibit 2.
2.2.2.Concessionaire will supply Communication Devices at Concessionaire’s cost (constituting Qualified CapEx) for installation in three new Second Avenue Subway stations. MTA (via MTA’s appropriate capital project or as otherwise determined by MTA) will be solely responsible for installing such Communications Devices at MTA’s cost, excluding the cost of the Communication Devices themselves, which shall constitute Qualified CapEx.
2.2.3.MTA will be entitled to utilize up to 40% of available display time for Agency Messages on all Hybrid Communication Devices (advertising screens where MTA is entitled to Generally-Applicable System Inventory Allocation as defined in the Agreement) in stations identified as “Additional GASA Stations” in the Amended and Restated Exhibit 2.
2.3.MNR In-Station Deployments.
2.3.1.Concessionaire will continue deployment as planned in all MNR stations currently under construction in accordance with the Amended and Restated Exhibit 2.
2.3.2.Concessionaire will supply Communications Devices for MNR as specified in the Amended and Restated Exhibit 2, provided that MNR will review the allocation of Agency Messaging-Only Communication Devices to determine whether any reductions or cost efficiencies are possible. MNR forces will install Communications Devices at MNR stations as specified in the Amended and Restated Exhibit 2, prioritizing the following stations with Hybrid Communications Devices: Scarsdale, Hartsdale, Fordham, North White Plains and Chappaqua.
2.3.3.The cost of installation of Agency Messaging-Only Communications Devices (including Agency Force Account Services Fees, totems, and design and manufacture of bracket hardware) will be included in Qualified CapEx up to $6,000,000 in the aggregate over the Term, including any extensions (the “MNR CIC Cost Cap”) and any costs relating to MNR’s installation of Agency Messaging-Only Communications Devices exceeding the MNR CIC Cost Cap will be borne solely by MNR and will not constitute Qualified CapEx. In accordance with Exhibit 8(7) to the License Agreement, Concessionaire will continue to be responsible for the incremental installation cost of MNR’s installation of Hybrid Communication Devices at an agreed upon per screen rate.
2.3.4.Concessionaire will supply Hybrid Communication Devices at Concessionaire’s cost (constituting Qualified CapEx). MTA may elect, at its discretion, to re-allocate Agency Messaging Only Communication Devices for installation in four Penn Access Stations. MTA (via MTA’s appropriate capital project or as
Letter Agreement No. 7 to License Agreement
otherwise determined by MTA) will be solely responsible for installing such Communications Devices at the four Penn Access stations at MTA’s cost, excluding the cost of the Communication Devices themselves, which shall constitute Qualified CapEx.
2.4.LIRR In-Station Deployments.
2.4.1.All LIRR in-station installation costs will be included in and subject to the previously agreed upon LIRR Agency Force Account Cap (as defined in Letter Agreement No. 6) or borne by LIRR, provided that the LIRR Agency Force Account Cap shall be increased by $350,000 for a new total of $5,050,000. The Concessionaire shall have no liability for installation costs other than as part of and subject to the LIRR Agency Force Account Cap.
2.4.2.Concessionaire will install Advertising-Only Communication Devices at Huntington, Babylon, and Port Washington stations in accordance with the Amended and Restated Exhibit 2. All Agency Force Account Services Fees associated with these installations will be included in the LIRR Agency Force Account Cap.
2.4.3.Concessionaire will supply Communication Devices as set forth in the Amended and Restated Exhibit 2 for installation at East Side Access. MTA (via MTA’s appropriate capital project or as otherwise determined by MTA) will be solely responsible for installing such Communications Devices at East Side Access at MTA’s cost, excluding the cost of the Communication Devices themselves, which shall constitute Qualified CapEx.
2.4.4.Concessionaire will supply an agreed upon number of Advertising-Only Communication Devices for installation as part of the Penn Station rehabilitation project. MTA will be solely responsible for installation of such Advertising-Only Communications Devices at Penn Station at MTA’s cost (not constituting Agency Force Account Services Fees or Qualified CapEx), excluding the cost of the Advertising-Only Communication Devices themselves, which shall constitute Qualified CapEx.
2.4.5.Concessionaire previously ordered 177 4XT screens at LIRR’s direction, all of which remain available for LIRR to install at LIRR’s discretion. Consistent with the License Agreement, LIRR remains responsible for installation of the 4XT screens. All costs associated with installation of these 4XT screens will be included in the LIRR Agency Force Account Cap or borne by LIRR. Concessionaire shall have no liability for installation costs of these 4XT screens other than as part of the LIRR Agency Force Account Cap.
2.4.6.Concessionaire remains obligated to provide up to $13,000,000 in AVPS/Daktronics screens to LIRR and LIRR remains responsible for the installation of the AVPS/Daktronics screens. In the event that any planned AVPS/Daktronics orders exceed the $13,000,000 cap, then LIRR (not Concessionaire) shall be obligated to pay for the cost of any requested AVPS/Daktronics screens. LIRR will work with the MTA to develop and implement a plan for installation and will review its AVPS/Daktronics plan to determine whether any reductions or efficiencies are possible. The Concessionaire shall have no liability for installation costs other than as part of and subject to the LIRR Agency Force Account Cap.
Letter Agreement No. 7 to License Agreement
2.4.7.Concessionaire agrees to immediately order 157 Daktronics screens needed by LIRR pursuant to the Amended and Restated Exhibit 2.
2.5.In-Car Deployments.
2.5.1.The scope of NYCT, MNR and LIRR in-car retrofit deployments will be reduced as set forth in the Amended and Restated Exhibit 2 and future in-car deployments will be governed by this Section 2.5. It is anticipated that all known in-car retrofit deployments will be complete by Q3/Q4 2023, as may be modified in the Services Schedule.
2.5.2.Future NYCT, MNR and LIRR In-Car Deployments
2.5.2.1.Concessionaire agrees to install Hybrid Communication Devices on at least 10% of each new NYCT subway car order (other than the R211 base order and any options, which will be separately agreed). Such subway cars shall be brand cars. If any previously digitized retrofit brand cars will be replaced by a new subway car order, the MTA will leave digitized retrofit brand cars in service as long as possible while new subway cars are being delivered (until the end of the replacement process, if possible.)
2.5.2.2.Concessionaire agrees to install Hybrid Communication Devices on at least 35% of each new MNR and LIRR rail car order, excluding existing or future LIRR M9 orders. It is not expected that new commuter rail car order will replace previously digitized commuter rail cars, but if previously digitized commuter rail cars are replaced, the MTA will leave such digitized commuter rail cars in service as long as possible while new cars are being delivered (until the end of the replacement process, if possible.)
2.5.3.Costs of New Car Installations.
2.5.3.1.(a) For new cars delivered by the end of 2029 or, if Concessionaire submits a Notice of Intent to Extend and the Extension Term is accordingly added to the Term, delivered by the end of 2034, costs required to be incurred by Concessionaire in connection with Hybrid Communication Device installations on such new cars will be treated under the existing Qualified CapEx recoupment provisions of the License Agreement, and (b) for new cars expected to be delivered after the end of 2029 or 2034, as applicable, the MTA shall pay 100% of the costs required to be incurred by Concessionaire in connection with installation of these Hybrid Communication Devices by the end of the Initial Term or Extension Term, as applicable, which amount shall not be subject to recoupment (or treated as Agency Force Account Services Fees or Qualified CapEx), but will be deducted from amounts owed to the MTA under the License Agreement.
2.5.3.2.The Qualified CapEx amounts under Sections 2.5.3.1 (a) above are subject to Section 2.6 (New Qualified CapEx) below, such that any outstanding amounts relating to Qualified CapEx on new car screens will be paid by the MTA at the end of the Term, if not recouped during the Term.
Letter Agreement No. 7 to License Agreement
2.5.4.Concessionaire will participate in the design process for new car types (R262 and others). MTA commits to improving the design and procurement process to appropriately account for the Communications System and the Services, including, but not limited to ensuring that the Communications System (as may be modified as technology changes) is included in the scope of all RFPs/procurements and car builder responsibility is clear.
2.6.New Qualified CapEx. The following shall apply to Qualified CapEx incurred in connection with new NYCT, MNR and LIRR in-car installations described in Section 2.5.3 above; the Second Avenue Subway station installations described in Section 2.2.2 above; the MNR CIC Cost Cap; and any increases to the scope of Concessionaire’s installation obligations following the Letter Agreement Effective Date that MTA and Outfront may agree to (subject to all requisite approvals for such increases in scope that might be needed, up to and including board approval) (collectively, “New Qualified CapEx”):
2.6.1.If (a) Concessionaire does not submit a Notice of Intent to Extend and/or the Extension Term is not added to the Term and (b) any New Qualified CapEx incurred through October 31, 2030 has not been recouped as of October 31, 2030, then any remaining balance will be deducted from amounts owed to MTA during the remainder of 2030.
2.6.2.If (a) Concessionaire does submit a Notice of Intent to Extend and the Extension Term is added to the Term and (b) any New Qualified CapEx incurred through incurred through October 31, 2035 has not been recouped as of October 31, 2035, then any remaining balance will be deducted from amounts owed to MTA during the remainder of 2035.
2.6.3.Incremental Revenue shall be applied to paying down Refresh CapEx and any New Qualified CapEx on a proportional basis (e.g., if $1,000,000 of Refresh CapEx and $3,000,000 of New Qualified CapEx is outstanding, then Incremental Revenue shall be applied 25% to Refresh CapEx and 75% to New Qualified CapEx). Costs incurred in connection with NYCT, MNR and LIRR in-car installations for cars delivered in the last year of the Initial Term or Extension Term, as applicable, shall be accounted for separately, as MTA is obligated to pay 100% of those costs under Section 2.5.3.1 above.
2.6.4.Concessionaire currently performs an MTA Rev Share true-up on a quarterly basis pursuant to Sections 9.2.1 and 10.2.4 of the Master TCs and will continue to do so during the Term. The following process shall apply to the periods identified below during the final year of the Term to facilitate Concessionaire’s recoupment of New Qualified CapEx:
2.6.4.1.Adjustment to Timing of Certain Final Year MAG Payments: In order to accommodate the true-up for recoupment of New Qualified CapEx for the periods below, notwithstanding Section 9.2.1 of the Master TCs, the monthly MAG payments for June, September, and October of the final year of the Initial Term or Extension Term, as applicable, shall be paid no later than the 20th calendar day after the end of such month (rather than the first day of such month) as a combined payment with the MTA Rev Share (if any), subject to recoupment of New Qualified CapEx from such combined amount as described below.
Letter Agreement No. 7 to License Agreement
2.6.4.2.Final Year Second Quarter True-Up: Beginning with the second calendar quarter of the final year of the Initial Term or Extension Term, as applicable, Concessionaire will perform a true-up calculation to determine if the remaining payments to be made to the MTA during the remainder of the Term, including MAG payments and anticipated MTA Rev Share payments, are expected to be in excess of the recoupment amounts for New Qualified CapEx; if yes, then the MAG payment for June and the MTA Rev Share payment for the second quarter, if any, will be made as originally contemplated in the License Agreement; if no, some or all of the combined June MAG Payment and MTA Rev Share payment for such second calendar quarter, if any, will be recouped by Concessionaire to reimburse up to 100% of outstanding New Qualified CapEx. The remaining portion of the combined June MAG payment and MTA Rev Share payment after such recoupment, if any, will be paid to MTA.
2.6.4.3.Final Year Third Quarter True-Up: At end of the third calendar quarter of the final year of the Initial Term or Extension Term, as applicable, Concessionaire will perform a true-up calculation to determine if the remaining payments to be made to the MTA during the remainder of the Term, including MAG payments and anticipated MTA Rev Share payments, are expected to be in excess of the recoupment amounts for New Qualified CapEx; if yes, then the MAG payment for September and the MTA Rev Share payment for the third quarter, if any, will be made as originally contemplated in the License Agreement; if no, some or all of the combined September MAG Payment and MTA Rev Share payment for such third calendar quarter, if any, will be recouped by Concessionaire to reimburse up to 100% of outstanding New Qualified CapEx. The remaining portion of the combined September MAG payment and MTA Rev Share payment after such recoupment, if any, will be paid to MTA.
2.6.4.4.Final True-Up: The final true-up of the final year of the Initial Term or Extension Term, as applicable, will be applied to the October payment. If the foregoing true-ups do not result in Concessionaire recouping 100% of New Qualified CapEx by the end of the Term, then the MTA will send Concessionaire a check in the amount of the unrecouped portion of New Qualified CapEx.
3.Screen Strength Considerations. The MTA and Concessionaire will continue to evaluate ways to strengthen Communication Device screens or otherwise prevent vandalism and breakage. Concessionaire will provide the MTA with an overview of possible options regarding screen strength and their associated costs by August 15, 2021.
4.API and Technology Requirements.
4.1.As already contemplated in the License Agreement, Concessionaire will maintain the IMS-DMP Interface in good working order to support the functions required under the License Agreement.
Letter Agreement No. 7 to License Agreement
4.2.Concessionaire will pay up to $245,000 of development costs under the Tri-Party Subcontracting Agreement between MTA, Concessionaire and Postlight LLC to support the MTA’s Mercury interface with the IMS-DMP Interface. The MTA will be responsible for the timeline and management of such development by Postlight LLC.
4.3.Concessionaire will inform the MTA in advance of any future development by Concessionaire to maintain or upgrade the IMS-DMP Interface so that upgrade integrations with Mercury can be discussed.
4.4.If any modifications are made, at Concessionaire’s request or upon mutual agreement, to the IMS-DMP Interface or the Communications System more broadly in a way that negatively affects Mercury functionality, then Concessionaire will reimburse the MTA for the third-party costs of modifying or upgrading Mercury as required to restore functionality and/or integrate with the IMS-DMP Interface. Where modifications to the IMS-DMP Interface or the Communications System are made at Concessionaire’s request, Concessionaire will provide as much prior notice of the proposed modifications as is practicable. If a third-party developer is required for such Mercury upgrade or modification, then Concessionaire and the MTA will enter into a tri-party contract with such third-party consistent with the existing Tri-Party Subcontracting Agreement between MTA, Concessionaire and Postlight LLC as soon as possible after Concessionaire notifies MTA that it intends to modify the IMS-DMP Interface or Communications System; that contract will include a schedule for upgrading or modifying Mercury as quickly as possible, which schedule will be approved by MTA. Other than such required modifications and upgrades, MTA is responsible for the operation and maintenance of Mercury at MTA’s cost.
4.5.If the modifications to the Communications System and/or the IMS-DMP Interface are requested by the MTA or changes to Mercury are made by the MTA that require changes to the IMS-DMP Interface, then (a) the MTA is responsible for the costs to modify Mercury and (b) the costs to modify the Communications System and/or the IMS-DMP Interface will be Qualified CapEx.
5.Extension of Initial Term; Availability of Equitable Adjustments.
5.1.The Initial Term of the License Agreement is hereby extended to continue until the thirteenth (13th) anniversary of the Effective Date, unless earlier terminated as set forth in the License Agreement.
5.2.In order to conform the remaining provisions of the License Agreement to the foregoing extension of the Initial Term, each reference to the tenth or later anniversary of the Effective Date and each reference to the tenth or later License Year is hereby increased by three years, such that all references to the tenth anniversary of the Effective Date become the thirteenth anniversary of the Effective Date (and so on for the eleventh and following anniversaries) and all references to License Year Ten become references to License Year Thirteen (and so on for the eleventh and following License Years).
5.3.So long as an Equitable Adjustment is not requested solely due to the current COVID-19 pandemic, the provisions of Section 25 of the Master TCs still apply and the Equitable Adjustments listed in Section 25 are still available to Concessionaire in accordance with the provisions of the License Agreement, including for subsequent pandemics and public health emergencies, as applicable.
Letter Agreement No. 7 to License Agreement
6.Certain Conditions for Exercise of Extension Term Option.
6.1.In the event that the average annual growth of Gross Revenue for the period from 2022 to 2028 (“Concessionaire Average Revenue Growth”) is lower than the Average Revenue Growth Target (as defined below), Concessionaire will be entitled to the Extension Term only with the mutual agreement of the MTA. For purposes of clarity, if the Concessionaire Average Revenue Growth is higher than the Average Revenue Growth Target, Concessionaire shall remain entitled to the Extension Term without the mutual agreement of the MTA if the Extension Conditions have been met.
6.2.Notwithstanding the foregoing, the mutual agreement of the MTA to the Extension Term will not be required if (a) there is Force Majeure Event during the Term that disproportionately impacts the New York City metropolitan area or (b) the MTA has failed to live up to its obligations under the License Agreement, including to provide necessary Agency Force Account Services as required in the License Agreement. In the case of either of the foregoing (a) or (b), OUTFRONT shall remain entitled to the Extension Term without the mutual agreement of MTA if the Extension Conditions have been met.
6.3.For purposes of this Letter Agreement No. 7, the Average Revenue Growth Target is a percentage equal to the product of (i) 105% times (ii) the average of the Adjusted Yearly Growth Rates for 2022 through 2028, where the Adjusted Yearly Growth Rate for each year is calculated as follows:
6.3.1.First, for each year from 2022 through 2028, the unadjusted yearly growth rate for that year (the “Unadjusted Yearly Growth Rate”) will be the lower of the annual rate of growth in (a) overall US transit advertising revenue and (b) total US OOH revenue (for both, as reported in OAAA’s “OOH Total Revenue by Format” report).
6.3.2.If, in a relevant year, total MTA rail ridership in that year grows at a rate greater than or equal to overall United States rail ridership in that year (as calculated using total urban rail transit ridership data published by the Federal Transportation Administration’s National Transit Database), then the “Adjusted Yearly Growth Rate” will be equal to the Unadjusted Yearly Growth Rate, without any modifications.
6.3.3.If, in a relevant year, total MTA rail ridership in that year grows at a rate less than overall United States rail ridership in that year (as calculated using total urban rail transit ridership data published by the Federal Transportation Administration’s National Transit Database), then the “Adjusted Yearly Growth Rate” will be equal to (i) the Unadjusted Yearly Growth Rate minus (ii) the number equal to (A) the overall rate of United States rail ridership growth/decline for that year minus (B) the overall rate of MTA rail ridership growth/decline for that year. For example, if in a given year the Unadjusted Yearly Growth Rate is 2%, overall United States rail ridership growth is 3%, and total MTA rail ridership growth is 2%, then the Adjusted Yearly Growth Rate is 1% (2% minus (3%-2%).
6.3.4.For purposes of the foregoing, a decline in revenue shall be regarded as negative growth. An example calculation of the Average Revenue Growth Target for 2022 through 2028 is set forth on Exhibit B to this Letter Agreement No. 7.
Letter Agreement No. 7 to License Agreement
6.4.In the event that (a) OAAA ceases to publish the “OOH Total Revenue by Format” report or the US transit or total OOH components of that report, or (b) either Party identifies a material deficiency in any published report(s) or the methodology used by OAAA to calculate US transit or US total OOH revenue, then the Parties will agree upon an alternative data source or a method to cure the deficiency.
7.Baseline Revenue Bonus.
7.1.If the Rev Share Adjustment Event occurs earlier than April 1, 2028, then a bonus payment will be payable to the MTA in each subsequent License Year equal to 2.5% of the Baseline Gross Revenue for that License Year (calculated annually) if the bonus conditions described in this Section 7 are met for that License Year (the “Baseline Bonus”). Concessionaire will pay the Baseline Bonus for a License Year, if any, following the Revenue Report Receipt Date pursuant to the true-up described in Section 16.11 of the Master TCs.
7.2.For purposes of calculating the Baseline Bonus, the “Bonus Baseline Revenue” is equal to Gross Revenues for the License Year that the Rev Share Adjustment Event occurs. If in any subsequent License Year, Gross Revenues decline by more than 5% of the prior License Year’s Gross Revenues, the MTA will not receive the Baseline Bonus. Following such a decline, the Baseline Bonus will not be payable until Gross Revenues in a License Year meet or exceed the Bonus Baseline Revenue. If in a License Year following such decline Gross Revenues meet or exceed the Bonus Baseline Revenue, the Baseline Bonus shall be payable for that License Year. As a clarifying example, if the Rev Share Adjustment Event occurs on November 5, 2027 and Gross Revenues for License Year 10 are $100, then $100 is the Bonus Baseline Revenue. If Gross Revenues in License Years 11 – 14 are $115, the MTA will receive a Baseline Bonus of $2.875 in each of those License Years. If Gross Revenues decline to $109 in License Year 15, which is more than a 5% decline in Gross Revenues from License Year 14, then the MTA will not receive a Baseline Bonus for License Year 15. If in License Year 16, the Gross Revenues are $105, which is not more than a 5% decline in Gross Revenues from License Year 15 and which is greater than the Bonus Baseline Revenue, and the MTA’s Baseline Bonus for License Year 16 is $2.625. If, however, in License Year 16, the Gross Revenues are $103, which is more than a 5% decline in Gross Revenues from License Year 15 Gross Revenues of $109, the MTA will not receive a Baseline Bonus for License Year 16.
8.Financial and Strategic Evaluations.
8.1.MTA reserves the right to consult with external parties to understand the broader advertising market and analyse general advertising revenue targets. MTA will not share any Concessionaire projections or other information specific to Concessionaire with any OOH or other advertising companies or any Concessionaire investors, Concessionaire auditors, etc.; however, the MTA is permitted to speak to these same groups in generic terms about the OOH industry. If Concessionaire revenues fall short of expected goals or targets, MTA and Concessionaire will discuss ways to address the shortfall.
8.2.At MTA’s request, Concessionaire will perform a formal financial analysis regarding the economic feasibility of installing Hybrid Communication Devices when MTA builds new stations or renovates existing stations that do not have Hybrid Communication Devices designated in the Amended and Restated Exhibit 2.
Letter Agreement No. 7 to License Agreement
9.Amendments to Letter Agreement No. 5.
9.1.For purposes of Letter Agreement No. 5 between the Parties, the Ongoing Installation (as defined in Letter Agreement No. 5) shall be limited to work authorized on or before December 31, 2020, such that the agreement to split the investment cost for the Ongoing Installation as set forth in Section 4 of Letter Agreement No. 5 applies solely to costs incurred for work authorized on or before December 31, 2020 in a not-to-exceed amount of $72,428,660 (with the MTA's share not to exceed $50,700,000).
9.2.The 2021 Services Schedule will be determined in accordance with the Amended and Restated Exhibit 2 instead of the plan for Ongoing Installation agreed to pursuant to Letter Agreement No. 5.
10.Agency Delay Reports.
The Parties agree that Agency Delay Reports required pursuant to Section 14.1 of the Master TCs shall be aggregated and sent quarterly starting with Q3 2021.
11.Incorporation.
The Parties agree that this Letter Agreement No. 7 is hereby incorporated by reference and made a part of the License Agreement. The Parties agree that this Letter Agreement No. 7 is fully enforceable under the License Agreement, and the Parties agree that all remedies available to the MTA under the License Agreement shall be applicable to this Letter Agreement No. 7.
[Signature pages follow]
Letter Agreement No. 7 to License Agreement
METROPOLITAN TRANSPORTATION AUTHORITY
By:____/s/ Lucy Zachman ___________________
Name: Lucy Zachman
Title: Director, Transit Advertising & Media
Letter Agreement No. 7 to License Agreement
Outfront Media Group LLC
By: _ /s/ Andy Sriubas _______
Name: Andy Sriubas
Title: Chief Commercial Officer
Letter Agreement No. 7 to License Agreement
Exhibit A to Letter Agreement No. 7
Amended and Restated Exhibit 2
Exhibit B to Letter Agreement No. 7
Example Average Revenue Growth Target Calculation
