# Form 6146

## Page 2

**References to which this policy applies shall not exceed the limit of liability stated in Item 4 of the declarations as aggregate.**

### V Definitions

When used in this policy (including endorsements forming a part hereof):

- **"controlling underlying insurance policy"** means the insurance policy designated as such in Item 6 of the declarations;
- **"costs"** means interest on judgments, and investigation, adjustment, and legal expenses including taxes, court costs, and premiums on bonds for which the insured is not liable under the underlying insurance (excluding, however, (a) all expenses for salaried employees and counsel on general retainer, (b) all office expenses of the insured, and (c) regular fees paid to counsel on general retainer);
- **"first named insured"** means the person or organization first named in Item 1 of the declarations of this policy;
- **"insured"** means any person or organization qualifying as an insured in the "Persons Insured" provision of this policy. The insurance afforded by this policy is separate for each insured against whom claim is made or suit is brought, except with respect to the limits of the company's liability;
- **"named insured"** means the first named insured and any other person or organization named in Item 1 of the declarations of this policy or in an endorsement amending such Item 1;
- **"occurrence"** means an accident or occurrence as defined in and covered by the controlling underlying insurance policy designated in the declarations;
- **"ultimate net loss"** means the total of all sums which the insured, or any organization as its insurer, or both, shall become legally obligated to pay because of reason by reason or aggregation or satisfaction of cause or causes of an occurrence during the period of the controlling underlying insurance policy and to which this policy applies; but "ultimate net loss" shall not include (a) the amount of any payments made by or on behalf of the insured or other insureds or other insurers (other than underlying insurance or insurance written specifically to apply in excess of this policy), whether collectible or not, or (b) costs;
- **"underlying insurance"** means the primary or excess insurance policies contributing to the total limit stated in Item 5 of the declarations (including any deductible amount). Insured's participation or self-insured retention beneath any such policy and includes any reinsurance placed with respect to the limits of such policies shall be deemed to be applicable regardless of (1) any defense which the underlying insurer may assert, (2) the insured's failure to comply with any condition of any such policy or (3) the insolvency of the underlying insurer.

### Conditions

1. **Premium**
   The premium for this policy shall be as stated in Item 3 of the declarations and be payable by the first named insured.
2. **Maintenance of Underlying Insurance**
   Policies affording in total the limits stated in Item 5 of the declarations shall be maintained in full effect during the currency of this policy.

### 3. Notice of Occurrence
Whenever it appears that an occurrence is likely to involve indemnity under this policy, written notice thereof shall be given to the company or any of its authorized agents as soon as practicable. Such notice shall be sufficient if it is sufficient to identify the insured and also reasonably obtainable information respecting the time, place, and circumstances of the occurrence, the names and addresses of the injured and of available witnesses.

### 4. Action Against Company
No action shall lie against the company unless, as a condition precedent thereto, there shall have been full compliance with all the terms of this policy, nor until the amount of the insured's obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement between the insured and the company.

Any person or organization or the legal 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. No person or organization shall have the right under this policy to join the company as a party to any action or proceeding against the insured. Any action or proceeding shall the company be pleaded by the insured or his legal representative. Bankruptcy or insolvency of the insured or of the insured's estate shall not relieve the company of any of its obligations hereunder.

### 5. Subrogation
In the event of any payment under this policy, the company shall participate with the insured and any underlying insurer in the exercise of all the insured's rights of recovery therefor against any person or organization, and the insured shall execute and deliver instruments and papers as may be necessary to secure such rights. The insured shall do nothing after loss to prejudice such rights.

Recoveries shall be applied:
- first, to reimburse any interest (including the insured) that may have paid any amount with respect to liability in excess of the limit of the company's liability hereunder;
- then, to reimburse the company up to the amount paid hereunder along with any other insurers having a quota share interest at the same level; and
- lastly, to reimburse such interests (including the insured), with respect to which this insurance is excess, as are entitled to claim the residue, if any;

but a different apportionment may be made to effect settlement of a claim by agreement signed by all interests. Reasonable expenses incurred in the exercise of rights of recovery shall be apportioned among all interests in the ratio of their respective losses for which recovery is sought.

### 6. Changes
Notice to any agent or knowledge possessed by any agent or any other person shall not effect a waiver or a change in any part of this policy or estop the company from asserting any rights under the terms of this policy with respects to any requirement as to underlying insurance; nor shall the terms of this policy be waived or changed, except by a statement issued to form a part of this policy, signed by an authorized representative of the company.

### 7. Assistance and Cooperation of the Insured
The Insured shall cooperate with the company and with the underlying insurers as required by the terms of the controlling underlying insurance policy and comply with all the terms and conditions thereof, and shall enforce any right of contribution or indemnity against any person or organization who may be liable to the Insured and with respect to which insurance is afforded under this policy or the underlying insurance policies.