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EXHIBIT 10(l)
SINGLE PAYMENT NOTE
$10,000,000.00 July 31, 2000
For value received, the Obligor promises to pay to the order of SunTrust
Bank f/k/a SunTrust Bank, Atlanta (the "Bank"), on the Termination Date, the
principal sum of
TEN MILLION DOLLARS ($10,000,000.00)
or such lesser amount of loans as may from time to time, at the Bank's sole
discretion, be advanced or, upon repayment, readvanced by the Bank hereunder
together with interest from the date hereof on the unpaid principal balance at
such annual rate or rates of interest as shall be computed and paid in
accordance with the terms and conditions hereinafter set forth. "Termination
Date" shall mean the earlier of: (a) July 30, 2001 or such later date as the
then existing Termination Date may be extended by the bank in its sole
discretion by notice to the Obligor; PROVIDED, that the failure of the Bank to
give such notice shall be deemed to mean that the then existing Termination Date
has not been so extended.
This note evidences the obligation of the Obligor to repay, with interest,
any and all present and future indebtedness of the Obligor for loans at any time
hereafter made or extended by the Bank hereunder up to the aggregate principal
amount of $10,000,000 at any time outstanding. The payment of any indebtedness
evidenced by this note shall not affect the enforceability of this note as to
any future, different or other indebtedness evidenced hereby.
The Obligor acknowledges and agrees that Southland Life Insurance Company
("Southland"), Life Insurance Company of Georgia ("LICG"), ING America Life
Corporation ("America Life"), Security Life of Denver Insurance Company
("Security Life"), First Columbine Life Insurance Company (hereinafter
"Columbine"), Midwestern United Life Insurance Company ("Midwestern"), First ING
Life Insurance Company of New York ("First ING New York"), United Life & Annuity
Insurance Company ("United Life"), Ameribest Life Insurance Company,
("Ameribest"), Equitable Life Insurance Company of Iowa ("Equitable Life"), USG
Annuity and Life Insurance Company ("USG"), Golden American Life Insurance
Company ("Golden American"), Equitable American Insurance Company ("Equitable
American"), Locust Street Securities, Inc. ("Locust Street"), Equitable of Iowa
Companies, Inc. ("Equitable of Iowa"), and the Obligor are all direct or
indirect subsidiaries of ING America Insurance Holdings, Inc. ("America
Holdings") or ING Insurance International B.V. ("ING International"). On the
date that this note is being executed, Columbine, Security Life, America Life,
Southland, Equitable Life, USG, and America Holdings are executing separate
notes to the Bank in the maximum principal amount of $100,000,000 each; Golden
American, LICG and United Life are executing separate notes to the Bank in the
maximum principal amount of $75,000,000 each; Equitable of Iowa is executing a
separate note to the Bank in the maximum principal amount of $50,000,000; First
ING New York, Locust Street and Ameribest are executing separate notes to the
Bank in the maximum principal amount of $10,000,000 each; Midwestern is
executing a separate note to the Bank in the maximum principal amount of
$30,000,000; and Equitable American is executing a separate note to the Bank in
the maximum principal amount of $25,000,000, each of which notes are
substantially similar to this note (the "Affiliate Notes"). Obligor agrees that
the aggregate unpaid principal balance from time to time outstanding on this
note plus the aggregate unpaid principal balance from time to time outstanding
on the Affiliate Notes will at no time exceed $150,000,000. Obligor will not
request any disbursement of principal under this note if, after such
disbursement, the unpaid principal balance of this note plus the aggregate
unpaid principal of the Affiliate Notes will exceed $150,000,000.
If the Obligor desires a disbursement of principal hereunder (an "Advance")
the Obligor shall give the Bank written or telephonic notice of the amount of
such Advance and the period of time from one (1) day to thirty (30) days that
such Advance shall be outstanding (the "Interest Period"), provided, however,
(a) if any Interest Period would otherwise end on a day which is not a day on
which the Bank and commercial banks in New York, New York, are open for business
(a "Business Day"), that Interest Period shall be extended through the next
succeeding day which is a Business Day, and (b) no Interest Period shall extend
beyond the Termination Date of this note. Such written or telephonic notice with
respect to the amount of an Advance and the Interest Period to be applicable
thereto shall be given to the Bank by the Obligor before one o'clock p.m.
Atlanta time, on the first Business Day of the applicable Interest Period. All
telephonic notices shall be promptly confirmed in writing.
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The Obligor shall pay interest upon each Advance from the date of
disbursement through the last day of the applicable Interest Period (including
the date of disbursement but excluding the date of repayment) at a rate per
annum, calculated on the basis of a 360-day year and upon the actual number of
days elapsed, equal to either of the following rates of interest as selected by
the Obligor: (1) the per annum rate of interest equal to the cost of funds of
Bank for the Interest Period applicable to such Advance for amounts
substantially similar to the amount of such Advance PLUS 0.225% all as
determined by Bank in accordance with its usual practices in determining its
cost of funds (the "Cost of Funds Rate") or (2) a per annum rate of interest
that would be applicable to the requested Advance as quoted by the Bank to the
Obligor (the "Quoted Rate"). Unpaid interest accruing at either of such rates
will be due and payable on the last Business Day of the applicable Interest
Period. The Bank will advise the Obligor of the Cost of Funds Rate and the
Quoted Rate that will be applicable to a requested Advance before 1:30 p.m.
Atlanta time on the Business Day that the Bank receives a request for an Advance
from the Obligor. The Obligor will advise the Bank as to whether the Obligor has
selected the Cost of Funds Rate or the Quoted Rate before 2:00 p.m. Atlanta time
on the Business Day that the Bank receives a request for an Advance from the
Obligor. Any telephonic selection of interest rates by the Obligor will promptly
be confirmed in writing. The Bank will promptly disburse the amount of an
Advance to the Obligor upon receiving notice of the Obligor's interest rate
selection. Unpaid interest accruing at such interest rate will be due and
payable on the last Business Day of the applicable Interest Period.
The Obligor shall repay the entire outstanding principal balance of each
Advance on the last Business Day of the Interest Period applicable thereto.
The Obligor may on any Business Day renew an outstanding Advance into an
Advance with the same or different Interest Period, provided that the Bank must
be advised of the Obligor's election to renew the Advance and the Interest
Period applicable to such renewal before one o'clock p.m. on the last Business
Day of the then current Interest Period. The interest rate to be applicable to
the renewal of any Advance shall be selected in the same manner that the
interest rate is selected at the time an Advance is made. If no Interest Period
has been elected for any Advance or for any principal balance outstanding
hereunder, or if such election shall not be timely, then the Interest Period
with respect thereto shall be deemed to be one day and the applicable interest
rate shall be the Cost of Funds Rate. Notwithstanding the foregoing, any such
renewal shall be at the Bank's sole discretion.
No prepayment of any Advance shall be permissible during the Interest
Period applicable thereto.
Should the Obligor fail for any reason to pay this note in full on the
Termination Date or on the date of acceleration of payment, the Obligor further
promises to pay interest on the unpaid amount from such date until the date of
final payment at a Default Rate equal to the Prime Rate plus 4%. Should legal
action or an attorney at law be utilized to collect any amount due hereunder,
the Obligor further promises to pay all costs of collection, plus reasonable
attorney's fees. All amounts due hereunder may be paid at any office of Bank.
The principal balance of this note shall conclusively be deemed to be the unpaid
principal balance appearing on the Bank's records unless such records are
manifestly in error.
As security for the payment of this and any other liability of the Obligor
to the holder, direct or contingent, irrespective of the nature of such
liability or the time it arises, the Obligor hereby grants a security interest
to the holder in all property of the Obligor in or coming into the possession,
control or custody of the holder, or in which the holder has or hereafter
acquires a lien, security interest, or other right. Upon default, holder may,
without notice, immediately take possession of and then sell or otherwise
dispose of the collateral, signing any necessary documents as Obligor's attorney
in fact, and apply the proceeds against any liability of Obligor to holder. Upon
demand, the Obligor will furnish such additional collateral, and execute any
appropriate documents related thereto, deemed necessary by the holder for its
security. The Obligor further authorizes the holder, without notice, to set-off
any deposit or account and apply any indebtedness due or to become due from the
holder to the Obligor in satisfaction of any liability described in this
paragraph, whether or not matured. The holder may, without notice, transfer or
register any property constituting security for this note into its or its
nominee name with or without any indication of its security interest therein.
This note shall immediately mature and become due and payable, without
notice or demand, upon the appointment of a receiver for the Obligor or upon the
filing of any petition or the commencement of any proceeding by the Obligor for
relief under any bankruptcy or insolvency laws, or any law relating to the
relief of debtors, readjustment of indebtedness, debtor reorganization, or
composition or extension of debt. Furthermore, this note shall, at the option of
the holder, immediately mature and become due and payable, without notice or
demand, upon the happening of any one or more of the following events; (1)
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nonpayment on the due date of any amount due hereunder; (2) failure of the
Obligor to perform any other material obligation to the holder; (3) if the
Obligor shall fail to make any payment as and when such payment is due upon any
obligation for borrowed money other than the obligation owing pursuant to this
Note, and by reason thereof such obligation becomes due prior to its stated
maturity or prior to its regularly scheduled dates of payment; (4) a reasonable
belief on the part of the holder that the Obligor is unable to pay its
obligations when due or is otherwise insolvent; (5) the filing of any petition
or the commencement of any proceeding against the Obligor for relief under
bankruptcy or insolvency laws, or any law relating to the relief of debtors,
readjustment of indebtedness, debtor reorganization, or composition or extension
of debt, which petition or proceeding is not dismissed within 60 days of the
date of filing thereof; (6) the suspension of the transaction of the usual
business of the Obligor, or the dissolution, liquidation or transfer to another
party of a significant portion of the assets of the Obligor and any such action
shall have a material adverse effect on the ability of the Obligor to repay the
unpaid principal balance hereof; (7) a reasonable belief on the part of the
holder that the Obligor has made a representation or warranty in connection with
any loan by or other transaction with the holder and such representation or
warranty was false in any material respect; (8) the issuance or filing of any
levy, attachment, garnishment, or lien against the property of the Obligor which
shall remain unpaid or undischarged for a period of thirty (30) days and such
failure to pay shall have a material adverse effect on the ability of the
Obligor to repay the unpaid principal balance hereof; (9) the failure of the
Obligor to satisfy any judgment, penalty or fine imposed by a court or
administrative agency of any government and such judgment, penalty, or fine
shall remain unpaid, unstayed on appeal, undischarged or undismissed for a
period of thirty (30) days; (10) failure of the Obligor, after demand, to
furnish financial information or to permit inspection of any books or records
during Obligor's normal business hours; (11) Golden American shall no longer own
100% of the outstanding voting stock of the Obligor; or (12) the Obligor shall
fail to maintain the minimum level of Company Action Level Risk Based Capital as
established by applicable state law or regulation.
The failure or forbearance of the holder to exercise any right hereunder,
or otherwise granted by law or another agreement, shall not affect or release
the liability of the Obligor, and shall not constitute a waiver of such right
unless so stated by the holder in writing. The Obligor agrees that the holder
shall have no responsibility for the collection or protection of any property
securing this note, and expressly consents that the holder may from time to
time, without notice, extend the time for payment of this note, or any part
thereof, waive its rights with respect to any property or indebtedness without
releasing the Obligor from any liability to the holder. This note is governed by
Georgia law.
The term "Obligor" means First Golden American Life Insurance Company of
New York. The term "Prime Rate", if used herein, shall mean that rate of
interest designated by Bank from time to time as its "Prime Rate" which rate is
not necessarily the Bank's best rate. The term "holder" means Bank and any
subsequent transferee or endorsee hereof.
PRESENTMENT AND NOTICE OF DISHONOR ARE HEREBY WAIVED BY THE OBLIGOR
FIRST GOLDEN AMERICAN LIFE INSURANCE COMPANY OF NEW YORK
By:/S/ David S. Pendergrass
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Name: David S. Pendergrass
Title: Vice President and Treasurer
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