Common use of Calculation of EBITDA Clause in Contracts

Calculation of EBITDA. (a) Promptly following each of December 31, 2004 and December 31, 2005, CCI shall engage ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLC, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & Company, or another recognized firm of independent accountants mutually acceptable to the CCI Boards (the “Auditors”) to audit in accordance with GAAP the consolidated financial statements of Media Billing and its iBill Subsidiary as at December 31, 2004 and December 31, 2005 and for the respective twelve months then ended, including therein, the consolidated balance sheet, statement of income and statement of cash flows of such Person(s) as at December 31, 2004, December 31, 2005 and for the applicable twelve months then ended (respectively, the “Fiscal 2004 Financial Statements” and “Fiscal 2005 Financial Statements”). The Auditors shall undertake to deliver the Fiscal 2004 and Fiscal 2005 Financial Statements to each of Penthouse and CCI by not later than March 31, 2005 (as to the Fiscal 2004 Financial Statements) and March 31, 2006 (as to the Fiscal 2005 Financial Statements. In addition to the Financial Statements, the Auditors shall provide the boards of directors of each of CCI and Penthouse with the EBITDA Calculation of the Fiscal 2004 EBITDA of iBill and the EBITDA Calculation of the Fiscal 2005 EBITDA of iBill which shall be derived from the statement of income contained in the Fiscal 2004 Financial Statements and Fiscal 2005 Financial Statements. (b) Upon request of Penthouse, and subject only to the execution of such customary non-disclosure and related agreements as may be reasonably requested by the Auditors, CCI shall instruct the Auditors to provide Penthouse with copies of all of the work papers and files prepared or reviewed by the Auditors in connection with preparation of the Fiscal 2004 Financial Statements and the Fiscal 2004 EBITDA Calculation and the Fiscal 2005 Financial Statements and the Fiscal 2005 EBITDA Calculation. In the event, that either Penthouse or CCI or their representatives shall dispute or disagree with either the Fiscal 2004 EBITDA Calculation or the Fiscal 2005 EBITDA Calculation of such Person(s), the Party so disputing or disagreeing shall notify the other Party or Parties in writing not later than thirty (30) days following receipt of the relevant EBITDA Calculation, specifying in such written notice (the “Dispute Notice”) the nature and amount of any such disputed items; it being understood that any items in the relevant EBITDA Calculation not timely disputed by a disputing Party shall be deemed, for all purposes, acceptable to such disputing Party, and may not be subsequently disputed by such Party. In the event that a disputing Party or Parties shall fail to timely submit a Dispute Notice in accordance with this Section 4.14(b), the relevant EBITDA Calculation prepared by the Auditors shall be deemed, for all purposes, to be final and binding on all Parties to this Agreement. (c) In the event that a disputing Party shall timely submit a Dispute Notice and the issues raised therein cannot be resolved by mutual agreement among the Parties, within thirty (30) days from the date a Dispute Notice shall be given, the disputing Party may submit the disputed issues or items contained in the relevant EBITDA Calculation to final and binding arbitration to be conducted by, and in accordance with the then obtaining rules of, the American Arbitration Association in Miami, Florida before a representative of either Ernst & Young or Deloitte & Touche (the “Arbitrating Accountants”). So long as the Arbitrating Accountants do not exceed their authority as provided in this Section 4.14, the decision and award of the Arbitrating Accountant shall be final and binding upon all parties hereto and may be enforced in any court of competent jurisdiction. (d) At such time as (i) the relevant EBITDA Calculation shall be mutually agreed upon by CCI and Penthouse or, (ii) if the subject of a Dispute Notice, such EBITDA Calculation shall be finally determined by the Arbitrating Accountants from which determination no appeal has or can be taken, for all purposes of this Agreement such EBITDA Calculation shall be deemed final and binding upon the Parties. In such event, such EBITDA Calculation, as the same may have been adjusted or modified, as aforesaid (the “Final EBITDA Calculation”) shall serve as the basis for the final Conversion Percentage and total number of shares of Fully-Diluted CCI Common Stock into which the Series D Preferred Stock shall be converted pursuant to Section 1.5(e) of this Agreement and the CCI Series D Preferred Stock Certificate of Designations. (e) Unless such Conversion Date shall have occurred earlier by reason of the Final EBITDA Calculation of the Fiscal 2004 EBIDTA of iBill reflecting a Fiscal 2004 EBITDA of $6.5 million or more, the date on which the Final EBITDA Calculation of the Fiscal 2005 EBITDA of iBill shall be determined, as set forth herein, shall be the “Conversion Date” for purposes of the automatic conversion of the Series D Preferred Stock into CCI Common Stock. (f) By a date that shall be not later than ten (10) days following determination of the Final EBITDA Calculation (i) Penthouse shall deliver all shares of Series D Preferred Stock to the transfer agent of CCI for conversion into CCI Common Stock and (ii) CCI shall instruct the transfer agent of CCI deliver to Penthouse the appropriate number of shares of CCI Common Stock resulting from such conversion.