UPC Liabilities. Shall mean all Liabilities (other than Liabilities for Taxes) at any time arising out of or relating to the businesses, operations or assets conducted or owned or formerly conducted or owned by, and the current or former employees of, the UPC Group; provided that, in no event shall UPC Liabilities include any Overnite Liabilities, any Overnite Securities Liabilities, any liabilities on any Guarantee or the Transaction Costs covered by the indemnification provisions set forth in Section 5 of
... this Agreement. In the case of an "employee benefit plan," as defined in Section 3(3) of ERISA, maintained or formerly maintained by the UPC Group for its employees or former employees in which no employee or former employee of the Overnite Group has participated by virtue of their employment with Overnite, "UPC Liabilities" shall include all liabilities for any benefits due and payable under the terms of such plans as well as any penalties, interest or other charges imposed by any governmental agency with respect to the maintenance and administration of such plans. Further, in case of any employee benefit plan maintained or formerly maintained by the UPC Group in which employees or former employees of the Overnite Group have participated by virtue of their employment with Overnite, "UPC Liabilities" shall be limited to the portion of the liability, penalty, interest or other charge attributable to employees or, former employees of the UPC Group, or in the event that a liability, penalty, interest or other charge is not attributable to such specific employees or former employees, "UPC Liabilities" shall be limited to the portion of the liability, penalty, interest or other charge that bears the same relationship to the whole thereof as the benefit liabilities under such plan attributable to employees or former employees of the UPC Group bears to all such benefit liabilities under the plan, and any costs (including reasonable counsel fees) imposed upon or incurred by the UPC Group in connection with such liability shall be allocated in the same manner. Notwithstanding the foregoing, UPC Liabilities shall include the Compensation Agreement and amounts payable to employees of the Overnite Group as deferred compensation under the UPC Executive Incentive Plan resulting from periods prior to the consummation of the Offering.
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