exv10w18









Exhibit 10.18




PRINCIPAL UNDERWRITING AGREEMENT




     THIS PRINCIPAL UNDERWRITING AGREEMENT made and effective as of the 1st day of August, 2008, by
and between TRANSAMERICA CAPITAL, INC. (“TCI”), an Iowa corporation, and ML LIFE INSURANCE COMPANY
OF NEW YORK (“MLLICNY”), a New York corporation, on its own behalf and on behalf of the separate
investment accounts of MLLICNY set forth in Exhibit A — Variable Life Products and
Exhibit B — Variable Annuity Products attached hereto and made a part hereof (collectively,
the “Account”).



WITNESSETH:




     WHEREAS, the Account(s) were established or acquired by MLLICNY under the laws of the State of
New York, pursuant to a resolution of MLLICNY’s Board of Directors in order to set aside the
investment assets attributable to certain variable life insurance and variable annuity contracts
(“Variable Contracts”) issued by MLLICNY;



     WHEREAS, MLLICNY has registered or will register the Account(s) with the Securities and
Exchange Commission (“SEC”) as a unit investment trust under the Investment Company Act of 1940
(the “1940 Act”);



     WHEREAS, MLLICNY also issues single premium modified guaranteed annuity contracts, which are
subject to market value adjustments, set forth in Exhibit C — Modified Guaranteed Annuity
Products attached hereto and made a part hereof (the “MVA Contracts” and, together with the
Variable Contracts, the “Contracts”);



     WHEREAS, MLLICNY has registered or will register the Contracts under the Securities Act of
1933 (the “1933 Act”);



 









 





     WHEREAS, MLLICNY shall have the Plan of Operations for the Accounts approved by the New York
Superintendent of Insurance;



     WHEREAS, TCI may not assign or delegate its responsibilities without prior written consent of
the MLLICNY Board and approval by the New York Superintendent of Insurance;



     WHEREAS, TCI is and will continue to be registered as a broker-dealer with the SEC under the
Securities Exchange Act of 1934 (the “1934 Act”), and a member of the Financial Industries
Regulatory Authority (the “FINRA”) prior to the offer and sale of the Contracts; and



     WHEREAS, MLLICNY proposes to have the Contracts sold and distributed through TCI, and TCI is
willing to sell and distribute such Contracts under the terms stated herein;



     NOW, THEREFORE, the parties, intending to be legally bound, hereby agree as follows:



     1. Appointment as Distributor/Principal Underwriter. MLLICNY grants to TCI the
exclusive right to be, and TCI agrees to serve as, distributor and principal underwriter of the
Contracts during the term of this Agreement. TCI agrees to use its best efforts to solicit
applications for the Contracts and otherwise perform all duties and functions which are necessary
and proper for the distribution of the Contracts.



     With respect to any underwriting functions and services that are performed for or provided to
MLLICNY by TCI pursuant to this Agreement, it is understood that (i) TCI shall perform such
services in accordance with underwriting guidelines and procedures



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established by MLLICNY from time to time and communicated in writing to TCI by MLLICNY; (ii) and
MLLICNY shall retain all final underwriting authority.



     2. Prospectus. TCI agrees to offer the Contracts for sale in accordance with the
registration statements and prospectus therefore then in effect. TCI is not authorized to give any
information or to make any representations concerning the Contracts other than those contained in
the current prospectus therefore filed with the SEC or in such sales literature as may be
authorized by MLLICNY.



     3. Considerations. All premiums, purchase payments or other moneys payable under the
Contracts shall be remitted promptly in full together with such application, forms and any other
required documentation to MLLICNY or its designated servicing agent and shall become the exclusive
property of MLLICNY. Checks or money orders in payment under the Contracts shall be drawn to the
order of “ML Life Insurance Company of New York” and funds may be remitted by wire if prior written
approval is obtained from MLLICNY. MLLICNY shall collect premiums or establish a lock-box bank
arrangement in its name for the deposit of amounts collected from policyholders (including payments
of principal or interest on contract loans) from any collection facility, including intermediaries
and other persons or institutions that receive remittances with respect to MLLICNY’s business. If
a lock-box arrangement is used, MLLICNY’s employees will direct the disbursement of funds.



     4. Copies of Information. MLLICNY shall furnish TCI with copies of all prospectuses,
financial statements and other documents which TCI reasonably requests for use in connection with
the distribution of the Contracts.



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     5. Representations. TCI represents that it is (a) duly registered as a broker-dealer
under the 1934 Act, (b) a member in good standing of FINRA and (c) to the extent necessary to offer
the Contracts, duly registered or otherwise qualified under the securities laws of any state or
other jurisdiction. TCI shall be responsible for carrying out its sales and underwriting
obligations hereunder in continued compliance with FINRA Rules and federal and state securities and
insurance laws and regulations.



     6. Other Broker-Dealer Agreements. TCI is hereby
authorized to enter into written sales agreements with other independent broker-dealers for the
sale of the Contracts. All such sales agreements entered into by TCI shall provide that each
independent broker-dealer will assume full responsibility for continued compliance by itself and by
its associated persons with FINRA Rules and applicable federal and state securities and insurance
laws and shall be in such form and contain such other provisions as MLLICNY may from time to time
require. All associated persons of such independent broker-dealers soliciting applications for the
Contracts shall be duly and appropriately registered by FINRA and licensed and appointed by MLLICNY
for the sale of Contracts under the insurance laws of the applicable states or jurisdictions in
which such Contracts may be lawfully sold. All applications for Contracts solicited by such
broker-dealers through their representatives, together with any other required documentation and
premiums, purchase payments and other moneys, shall be handled as set forth in paragraph 3 above.



     7. Insurance Licensing and Appointments. MLLICNY shall apply for the proper insurance
licenses and appointments in appropriate states or jurisdictions for the designated persons
associated with TCI or with other independent broker-dealers that



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have entered into sales agreements with TCI for the sale of Contracts, provided that MLLICNY
reserves the right to refuse to appoint any proposed registered representative as an agent or
broker, and to terminate an agent or broker once appointed.



     8. Recordkeeping. MLLICNY and TCI shall cause to be maintained and preserved for the
periods prescribed such accounts, books, and other documents as are required of them by the 1940
Act, and 1934 Act, and any other applicable laws and regulations. The books, accounts and records
of MLLICNY, of the Account(s), and of TCI as to all transactions hereunder shall be maintained so
as to disclose clearly and accurately the nature and details of the transactions. All records
shall be maintained in accordance with New York Insurance Department Regulation No. 152 (11 NYCRR
243). MLLICNY (or such other entity engaged by MLLICNY for this purpose), on behalf of and as
agent for TCI, shall maintain TCI’s books and records pertaining to the sale of Contracts to the
extent as mutually agreed upon from time to time by MLLICNY and TCI; provided that such books and
records shall be the property of TCI, and shall at all times be subject to reasonable periodic,
special or other audit or examination by the SEC, FINRA, any state insurance commissioner and/or
all other regulatory bodies having jurisdiction. MLLICNY shall be responsible for sending on
behalf of and as agent for TCI all required confirmations on customer transactions in compliance
with applicable regulations, as modified by an exemption or other relief obtained by MLLICNY. TCI
shall cause MLLICNY to be furnished with such reports as MLLICNY may reasonably request for the
purpose of meeting its reporting and recordkeeping requirements under the insurance laws of the
State of New York and any other applicable states or jurisdictions. MLLICNY agrees that its
records relating to the sale



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of Contracts shall be subject to such reasonable periodic, special or other audit or
examination by the SEC, FINRA, and any state insurance commissioner and/or all other regulatory
bodies having jurisdiction.



     All records, books, and files established and maintained by TCI by reason of its performance
of services under this Agreement, which absent this Agreement would have been held by MLLICNY,
shall be deemed the property of MLLICNY and shall be maintained in accordance with applicable law
and regulation, including, but not limited to, Regulation No.152. Such records should be available,
during normal business hours, for inspection by the service recipient, anyone authorized by the
service recipient, and any governmental agency that has regulatory authority over the service
recipient’s business activities. Copies of such records, books and files shall be delivered to
MLLICNY on demand. All such records, books and files shall be promptly transferred to MLLICNY by
TCI upon termination of this Agreement.



     9. Safeguarding Customer Information. TCI shall implement and maintain appropriate
measures designed to meet the objectives of Department Regulation No. 173, with respect to
safeguarding MLLICNY’s customer information and customer information systems. TCI shall adjust its
information security program at the request of MLLICNY for any relevant changes dictated by
MLLICNY’s assessment of risk around its customer information and customer information systems.
Confirming evidence that TCI has satisfied its obligations under this agreement shall be made
available, during normal business hours, for inspection by MLLICNY, anyone authorized by MLLICNY,
and any governmental agency that has regulatory authority over MLLICNY’s business activities.



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     10. Commissions. MLLICNY shall have the responsibility for paying on behalf of TCI
(a) any compensation to other independent broker-dealers and their associated persons due under the
terms of any sales agreements entered into pursuant to paragraph 6 above, between TCI and such
broker-dealers as agreed to by MLLICNY and (b) all commissions or other fees to associated persons
of TCI which are due for the sale of the Contracts in the amounts and on such terms and conditions
as MLLICNY and TCI determine. Notwithstanding the preceding sentence, no broker-dealer, associated
person or other individual or entity shall have an interest in any deductions or other fees payable
to TCI as set forth herein.



     11. Expense Reimbursement. MLLICNY shall reimburse TCI for all costs and expenses
incurred by TCI in furnishing the services, materials, and supplies required by the terms of this
Agreement. The expense to be paid by MLLICNY for the services under this agreement must be actual
cost incurred by TCI to provide such services so that neither party shall receive a profit nor
suffer a loss. Expenses will be classified and allocated in accordance with New York State
Insurance Department Regulation No. 33. TCI shall submit within 30 days prior to the end of each
quarter a statement of the estimated amount of the apportioned expenses, if any, for such quarter
and MLLICNY shall remit payment within 15 days following receipt of such statement. Within 60 days
after the end of each fiscal year, TCI shall submit a statement of actual apportioned expenses, if
any, for such fiscal year. The difference between the amount of estimated and actual expenses, if
any, shall be paid to either party, as the case may be, within 15



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days of the receipt of the statement of actual apportioned expenses. Records of such expenses
shall be subject to audit at all times by MLLICNY and its Regulators.



     12. Indemnification. MLLICNY agrees to indemnify TCI for any losses incurred as a
result of any action taken or omitted by TCI, or any of its officers, agents or employees, in
performing their responsibilities under this Agreement in good faith and without willful
misfeasance, gross negligence, or reckless disregard of such obligations.



     13. Regulatory Investigations. TCI and MLLICNY agree to cooperate fully in any
insurance or judicial regulatory investigation or proceeding arising in connection with Contracts
distributed under this Agreement. TCI and MLLICNY further agree to cooperate fully in any
securities regulatory inspection, inquiry, investigation or proceeding or any judicial proceeding
with respect to MLLICNY, TCI, their affiliates and their representatives to the extent that such
inspection, inquiry, investigation or proceeding or judicial proceeding is in connection with
Contracts distributed under this Agreement. Without limiting the foregoing:



     (a) TCI will be notified promptly of any customer complaint or notice of any regulatory
inspection, inquiry investigation or proceeding or judicial proceeding received by MLLICNY with
respect to TCI or any representative or which may affect MLLICNY’s issuance of any Contracts
marketed under this Agreement; and



     (b) TCI will promptly notify MLLICNY of any customer complaint or notice of any regulatory
inspection, inquiry, investigation or judicial proceeding received by TCI or any representative
with respect to MLLICNY or its affiliates in connection with any Contracts distributed under this
Agreement.



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     In the case of a customer complaint, TCI and MLLICNY will cooperate in investigating such
complaint and shall arrive at a mutually satisfactory response.



     14. Termination.



     (a) This Agreement may be terminated by either party hereto upon 60 days’ prior written notice
to the other party.



     (b) This Agreement may be terminated upon written notice of one party to the other party
hereto in the event of bankruptcy or insolvency of such party to which notice is given.



     (c) This Agreement may be terminated at any time upon the mutual written consent of the
parties hereto.



     (d) TCI shall not assign or delegate its responsibilities under this Agreement without the
written consent of MLLICNY.



     (e) Upon termination of this Agreement, all authorizations, rights and obligations shall cease
except the obligations to settle accounts hereunder, including payments or premiums or
contributions subsequently received for Contracts in effect at the time of termination or issued
pursuant to applications received by MLLICNY prior to termination.



     (f) Upon termination, TCI shall promptly deliver to MLLICNY all books and records that are, or
are deemed by this Agreement, the property of MLLICNY.



     (g) If any software that is used in the performance of the services under this agreement is
not readily available from a third party vendor, MLLICNY shall be granted perpetual right to use
such software.



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     15. Regulatory Impact. This Agreement shall be subject to, among other laws, the
provisions of the 1940 Act and the 1934 Act and the rules, regulations, and rulings thereunder and
of FINRA, from time to time in effect, including such exemptions from the 1940 Act as the SEC may
grant, and the terms hereof shall be interpreted and construed in accordance therewith.



     TCI shall submit to all regulatory and administrative bodies having jurisdiction over the
operations of the Account(s), present or future; and will provide any information, reports or other
material which any such body by reason of this Agreement may request or require pursuant to
applicable laws or regulations.



     16. Severability. If any provision of this Agreement shall be held or made invalid by
a court decision, statute, rule or otherwise, the remainder of this Agreement shall not be affected
thereby.



     17. Choice of Law. This Agreement shall be construed, enforced and governed by the
laws of the State of New York.



     18. No Assignment. Neither party may assign its interest in this Agreement without
the prior written consent of the other party, which consent shall not be unreasonably withheld or
delayed. The New York State Insurance Department shall also be required to approve any assignment.



     19. Disputes. Any dispute between TCI and MLLICNY shall be submitted to a board of
arbitration comprised of no less than three unaffiliated arbitrators having experience and
familiarity with variable insurance products and such arbitration shall be administered by the
American Arbitration Association in accordance with its Commercial Arbitration Rules. Arbitration
is the sole remedy for disputes arising under
this



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agreement. Arbitration should be held New York. Expenses of such arbitration shall be
borne by TCI and MLLICNY equally.



     20. All advertising, sales and marketing material utilized on behalf of MLLICNY by TCI shall
be subject to the prior approval of MLLICNY. MLLICNY shall maintain files of all such material in
accordance with the New York State Insurance Department Regulation No. 34A.



     21. TCI shall provide underwriting services to MLLICNY under this agreement in accordance with
the underwriting guidelines and procedures provided to TCI by MLLICNY, and MLLICNY shall retain all
final underwriting authority.



     22. This Agreement constitutes the entire agreement between the parties; and no other
agreement, statement or promise not contained in this Agreement shall be valid or binding.



     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed by their
respective duly authorized officials as of the day and year first above written.



	 	 	 	 	 
	TRANSAMERICA CAPITAL, INC.	 	 
	 
	 	 	 	 
	By:

	 	 	 	 
	 

	 	 	 	 
	 

	 	Robert R. Frederick	 	 
	 
	 	 	 	 
	Title: President and Chief Operations Officer	 	 
	 
	 	 	 	 
	ML LIFE INSURANCE COMPANY OF NEW YORK	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	 

	 	Darin D. Smith	 	 
	 
	 	 	 	 
	Title: Vice President	 	 






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EXHIBIT A — VARIABLE LIFE PRODUCTS




ML of New York Variable Life Separate Account




ML of New York Variable Life Separate Account II




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EXHIBIT B- VARIABLE ANNUITY PRODUCTS




ML of New York Variable Annuity Separate Account




ML of New York Variable Annuity Separate Account A




ML of New York Variable Annuity Separate Account B




ML of New York Variable Annuity Separate Account C




ML of New York Variable Annuity Separate Account D




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EXHIBIT C — MODIFIED GUARANTEED ANNUITY PRODUCTS




Asset I





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