Amendment No. 3 to Participation Agreement (Davis)

[Retail]

Exhibit 8(k)(2)

Amendment No. 3 to Participation Agreement (Xxxxx)

[Retail]

AMENDMENT NO. 3 TO PARTICIPATION AGREEMENT

BETWEEN XXXXX NEW YORK VENTURE FUND,

XXXXX DISTRIBUTORS LLC AND

TRANSAMERICA ADVISORS LIFE INSURANCE COMPANY OF NEW YORK

Amendment to the Participation Agreement (the “Agreement”), dated August 28, 2002, by and between Transamerica Advisors Life Insurance Company of New York (the “Company”), on its own behalf and on behalf of each segregated asset account of the Company set forth on Schedule A hereto as may be revised from time to time (hereinafter referred to as the “Account”), Xxxxx New York Venture Fund (the “Fund”) and Xxxxx Distributors, LLC. (the “Underwriter”).

WHEREAS, the parties executed an amendment dated January 1, 2012 to add Confidential Information, complying with Massachusetts privacy laws that shall hereafter be referred to as Amendment Number 2 to the Participation Agreement.

WHEREAS, the parties desire to further amend the Agreement as provided herein.

NOW, THEREFORE, in consideration of the mutual promises set forth herein, the parties hereto agree as follows:

1. A new section, numbered consecutively, is added to the Agreement as follows:

ARTICLE XIII. Summary Prospectus

Should the Fund and the Company desire to distribute the prospectuses of the funds within the Fund pursuant to Rule 498 of the Securities Act of 1933, as amended, (“Rule 498”), the roles and responsibilities of the Parties to the Agreement (the “Parties”), for complying with Rule 498 and other applicable laws, are set forth as follows:

13.1. For purposes of this Section, the terms “Summary Prospectus” and “Statutory Prospectus” shall have the same meaning as set forth in Rule 498.

13.2. The Fund shall provide, or cause to provide, the Company with copies of the Summary Prospectuses in the same manner and at the same times as the Participation Agreement requires that the Fund provide the Company with Statutory Prospectuses. If the Fund makes any changes to the Summary Prospectus by way of a filing pursuant to Rule 497 under the Securities Act of 1933, unless the Parties agree otherwise, the Fund shall, instead of providing the Company with a revised Summary Prospectus, provide the Company with a supplement setting forth the changes in the Rule 497 filing.

13.3. The Fund and/or the Underwriter shall be responsible for compliance with Rule 498(e).

13.4. The Fund and Underwriter each represent and warrant that the Summary Prospectuses and the web site hosting of such Summary Prospectuses will comply with the requirements of Rule 498 applicable to the Fund and its series. The Fund further represents and warrants that it has reasonable policies and procedures in place to ensure that such web site complies with Rule 498.

13.5. The Fund and Underwriter each agree that the URL indicated on each Summary Prospectus will lead Contract owners directly to the web page used for hosting Summary Prospectuses (“Landing Page”) and that such Landing Page will host the current Fund and series’ documents required to be posted in compliance with Rule 498. The Fund shall immediately notify the Company of any interruptions in availability of this Landing Page that last more than 24 hours. Such Landing Page will contain the investment options available under the Agreement.

[Retail]

13.6. The Fund and Underwriter represent and warrant that they will be responsible for compliance with the provisions of Rule 498(f)(1) involving Contract owner requests for additional Fund documents made directly to the Fund. The Fund and Underwriter further represent and warrant that any information obtained about Contract owners pursuant to this provision will be used solely for the purposes of responding to requests for additional Fund documents.

13.7. The Company represents and warrants that it will respond to requests for additional fund documents made by Contract owners directly to the Company or one of its affiliates.

13.8. Company represents and warrants that any binding together of Summary Prospectuses and/or Statutory Prospectuses will be done in compliance with Rule 498.

13.9. If the Fund determines that it will end its use of the Summary Prospectus delivery option, the Fund and Underwriter will provide the Company with at least 90 days advance notice of its intent.

13.10. The Parties agree that the Company is not required to distribute Summary Prospectuses to its Contract owners, but rather that the use of the Summary Prospectus will be at the discretion of the Company. The Company agrees that it will give Underwriter and the Fund reasonable notice of its intended use of the Summary Prospectuses or the Statutory Prospectuses.

13.11. The Parties agree that all other provisions of the Participation Agreement, including the Indemnification provisions, will apply to the terms of this Section as applicable.

2. The existing 5^th Whereas clause of the Agreement is hereby deleted in its entirety and replaced with the following:

WHEREAS, the Account is duly established and maintained as a segregated asset account, duly established by the Company, on the date shown for such Account on Schedule A hereto, to set aside and invest assets attributable to variable annuity contracts set forth in Schedule A hereto, as it may be revised or supplemented from time to time with notice to all parties (the “Contracts”);

3. The existing 9^th Whereas clause of the Agreement is hereby deleted in its entirety and replaced with the following:

WHEREAS, to the extent permitted by applicable insurance laws and regulations, the Company intends to purchase shares in the Portfolios (and classes thereof) listed in Schedule B hereto, as it may be revised or supplemented from time to time with notice to all parties (the “Designated Portfolios”) on behalf of the Account to fund the aforesaid Contracts, and the Underwriter is authorized to sell such shares in the Designated Portfolios, and classes thereof, to the Account at net asset value.

4. The parties agree to combine existing Schedule A and Schedule B into a single schedule hereby referenced as Schedule A, as supplemented from time to time by a party, with notice to all other parties. Schedule A and Schedule B of the Agreement are hereby deleted in their entirety and replaced with the attached Schedule A. All references to Schedule B in the Agreement are hereafter a reference to Schedule A.

[Retail]

All other terms and provisions of the Agreement not amended herein shall remain in full force and effect. Unless otherwise specified, all defined terms shall have the same meaning given to them in the Agreement.

Effective Date: May 1, 2013

XXXXX NEW YORK VENTURE FUND						XXXXX DISTRIBUTORS, LLC
By:		/s/ Xxxxxx Xxxx				By:		/s/ Xxxxxx Xxxx
Name:		Xxxxxx Xxxx				Name:		Xxxxxx Xxxx
Title:		Vice President				Title:		Vice President
Date:		March 18, 2013				Date:		March 18, 2013

TRANSAMERICA ADVISORS LIFE INSURANCE COMPANY OF NEW YORK
By:		/s/ Xxxx Xxxxxxx
Name:		Xxxx Xxxxxxx
Title:		Vice President
Date:		3-19-13

[Retail]

SCHEDULE A

Revised May 1, 2013

ACCOUNTS

ML of New York Variable Annuity Separate Account D

CONTRACTS

Xxxxxxx Xxxxx XXX Annuity

Xxxxxxx Xxxxx Investor Choice Annuity

FUNDS

Xxxxx New York Venture Fund, Inc. – Class A