## 4. Appeals

In the event the insured or the insured's underlying insurer elects not to appeal a judgment in excess of the retained limit, the company may elect to do so at its own expense, and shall be liable for the taxable costs, disbursements and interest incidental thereto, but in no event shall the liability of the company for ultimate net loss exceed the applicable Limit of Liability stated in the Declarations plus the taxable costs, disbursements and interest incidental to such appeal.

## 5. Action Against The Company

No action shall be against the company with respect to any one occurrence unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy, nor until the amount of the insured's obligation to pay an amount ultimate net loss in excess of the retained limit shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company. The insured shall make a definite claim for any loss in which the company may be liable within a reasonable time after such final determination. If any subsequent payments are made by the insured on account of the same occurrence, the insured shall make additional claims from time to time and these claims shall be payable within thirty (30) days after proof in conformity with this policy. Any person or organization the loss representative thereof who has secured such judgment or written agreement shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy. Nothing contained in this policy shall give any person or organization the right to join the company as a co-defendant in any action against the insured to determine the insured's liability.

Bankruptcy or insolvency of the insured shall not relieve the company of any of its obligations hereunder provided, however, that in the event of such bankruptcy or insolvency, the determination of the limit of the company's liability shall continue to be predicated on the insured's retained limit, whether or not the amount of the insured's retained limit is paid. In the event of such bankruptcy or insolvency, the liquidator, receiver or statutory successor of the insured shall give written notice to the company, the pendency or each claim against such insured as respects personal injury, property damage, or advertising liability covered hereunder and which may reasonably be expected to involve this insurance, within a reasonable time after such claim is filed in the bankruptcy or insolvency proceedings; and, during the pendency of such claim, the company may investigate such claim and interpose in the proceedings where such claim is to be adjudicated, any defense or defenses which it may deem available to the insured, its liquidator, receiver or statutory successor. The cost to the company thus incurred shall be included as part of ultimate net loss.

## 6. Other Insurance with The Company

If collectible insurance under any other policy of the company is available to the insured, covering a loss also covered hereunder, the company's total liability shall in no event exceed the greater or greatest limit of liability applicable to such loss under this or any other such policy provided, however, this does not apply to insurance with the company which is written as underlying insurance or which is written as excess insurance over the limit provided in this policy.

## 7. Other Insurance Not with The Company

If collectible insurance with any other insurer is available to the insured, covering a loss also covered hereunder, the insurance hereunder shall be in excess of, and not contribute with, such other insurance provided, however, this does not apply to insurance which is written as excess insurance over the limit provided in this policy.

## 8. Subrogation

The company shall be subrogated to the extent of any payment hereunder to all the insured's rights of recovery therefor.