# Excess Liability Policy

**Policy Provisions — Part 1**

Form 6146

**Policy No. KA 0000561**

**INTERNATIONAL BUSINESS MACHINES CORP**

**OLD ORCHARD PARK**

**ARMONK, NEW YORK 10504**

## I INSURING AGREEMENT

The company will indemnify the insured for ultimate net loss in excess of underlying insurance stated in Item 5 of the declarations, but not in excess of the company's limits of liability stated in Item 4 of the declarations.

Except as otherwise provided by this policy, the insurance afforded herein shall follow all the terms, conditions, definitions and exclusions of the controlling underlying insurance policy designated Item 6 of the declarations.

## II INVESTIGATION, DEFENSE, SETTLEMENT

The company shall not be obligated to assume charge of the investigation, defense or settlement of any claim or suit against the insured, but the company shall have the right to be given the opportunity to associate with counsel for its underlying insurers, or both, in the investigation, defense or settlement of any claim or suit which, in the opinion of the company, involves or appears reasonably likely to involve the company. If the company avails itself of such right and opportunity, the insured, its insurers and the company shall cooperate in such matters so as to effect a final determination thereof. The insured shall not make or agree to any settlement for an amount in excess of underlying insurance without the approval of the company.

Subject to the above provision, costs incurred by the Insured shall be borne as follows:

(a) all costs incurred by the insured without the written consent of the company shall be borne by the insured;

(b) if a claim or suit is settled for not more than the limits of underlying insurance, no costs shall be payable by the company;

(c) if the sum for which a claim or suit is settled exceeds the limits of underlying insurance, then the company, if it approves such settlement or consents to the continuation of the proceedings, shall contribute to the costs incurred by the insured in the proportion which the amount of ultimate net loss as finally determined to be payable by the company bears to the total amount paid on such claim or suit by all interests;

(d) if the Insured elects not to appeal a judgment in excess of the limits of underlying insurance, the company may elect to produce such appeal at its cost and expense, and shall be liable for the taxable costs and disbursements and interest incidental thereto, but in no event shall the total liability of the company exceed the limits of liability as stated in this policy, plus the cost and expense of such appeal;

(e) if a judgment is rendered in excess of the limits of underlying insurance and the company is willing to contribute thereto but the underlying insurer is unwilling to appeal such judgment, the duty of obtaining an appeal bond with respect to liability in excess of the limits of underlying insurance shall be that of the Insured and its underlying insurers.

## III PERSONS INSURED

Each of the following is an insured under this policy to the extent set forth below:

(a) any named insured, and

(b) any person or organization which is an Insured under the terms of the controlling underlying insurance policy, subject to all the limitations upon coverage under such controlling underlying insurance policy other than the limits thereof.

## IV LIMITS OF LIABILITY

Regardless of the number of (1) Insureds under this policy, (2) persons or organizations who sustain injury or damage or (3) claims made or suits brought, the company's liability is limited as follows:

(a) The limits of the company's liability under this policy apply only after the underlying insurers have paid or have been held legally liable to pay the full amount of their respective limits of liability, which makes up the total stated in Item 5 of the declarations; provided that:

(i) unless aggregate limits are specifically stated in both Items 4 and 5 of the declarations, the insurance afforded by this policy applies with respect to each occurrence only to limits of liability in excess of the amounts provided for each occurrence in the underlying insurance, and does not apply over any reduced amount of underlying insurance in the event of the exhaustion or reduction of the limits of liability, if any, in the underlying insurance; or

(ii) if aggregate limits of liability are specifically stated in both Items 4 and 5 of the declarations, the insurance afforded by this policy applies in excess of reduced underlying insurance, provided such reduction in the underlying Insurance is solely the result of the payment of claims because of occurrences taking place during the period of this policy.

(b) If the limits of liability stated in Item 4 of the declarations are on a "Quota Share Basis", the limits of the company's liability shall be the quota share percentage so stated of all ultimate net loss to which this policy applies which is in excess of underlying insurance, up to the limits so stated.

(c) If the limits of liability stated in Item 4 of the declarations are on a "Full Limits Basis", the limits of the company's liability shall be the amount of all ultimate net loss to which this policy applies which is in excess of underlying insurance, up to the limits so stated.

(d) Subject to provisions (a), (b) and (c) above, the total liability of the company for all ultimate net loss as the result of any one occurrence, shall not exceed the limit of liability stated in Item 4 of the declarations as applicable to "each occurrence".

(e) Subject to provisions (a), (b) and (c) above, the total liability of the company for all ultimate net loss because of all occurrences.