EBITA. Means, as determined on each Exchange Date, the net income or net loss of TFC and its subsidiaries for the last Fiscal Year ending immediately prior to the Exchange Date, as determined on a stand-alone, consolidated basis in accordance with GAAP with the following adjustments: (a) The following items shall not be taken into account: (i) any New Business EBITA, (ii) any general and administrative expenses of Hub Canada, Hub U.S. and any Hub Affiliate (other than any such
... expenses incurred directly by TFC or any of its direct or indirect subsidiaries), (iii) any costs relating to the purchase of errors and omissions insurance for claims against TFC arising prior to the Closing Date, (iv) any interest, taxes and amortization (other than any interest, taxes or amortization described in either clauses (i) or (ii) of this SECTION 1.8(A)) and (v) any other items that the parties mutually agree. (b) The excess (if any) of the amount of New Business EBITA for a New Business over the amount of Base EBITA for such New Business shall be added to such net income or loss. (c) The EBITA Loss shall reduce any such net income or increase any such net loss. (d) Any item for which any Buyer Indemnitee (as defined in the Stock Purchase Agreement) would be entitled to indemnification under SECTION 8.2 of the Stock Purchase Agreement (as determined without regard to the application of SECTION 8.4 of the Stock Purchase Agreement) shall, for the first Fiscal Year ending prior to the first Exchange Date (regardless of when such item is actually identified or incurred), reduce any such net income or increase any such net loss, if and only to the extent that such item is not otherwise taken into account as a current expense for such Fiscal Year under GAAP and is not covered by insurance or other reimbursement arrangement. 2 (e) Any item attributable to or derived from the breach of any representation, warranty or covenant set forth in the Subscription Agreement shall, for the first Fiscal Year ending prior to the first Exchange Date (regardless of when such item is actually identified or incurred), reduce any such net income or increase any such net loss, if and only to the extent that such item is not otherwise taken into account as a current expense for such Fiscal Year under GAAP and is not covered by insurance or other reimbursed arrangement. (f) For purposes of SECTION 1.8(D) and SECTION 1.8(E), the following items shall be determined without regard to any terms based on knowledge, materiality, deductible or cap or other similar limitation set forth in the Stock Purchase Agreement or the Subscription Agreement: (i) whether there is, has been or will be breach of any representation, warranty or covenant set forth in the Subscription Agreement or the Subscription Agreement, (ii) the amount of any item for which any Buyer Indemnitee is or would be entitled to indemnification under SECTION 8.2 (or any successor provision thereto) of the Stock Purchase Agreement (as determined without regard to the application of SECTION 8.4 (or any successor provision thereto) of the Stock Purchase Agreement), and (iii) the amount of any item attributable to or derived from the breach of any representation, warranty or covenant set forth in the Subscription Agreement.
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