Exhibit 10.35


 


FIRST
AMENDMENT TO

ESI EXCESS PENSION PLAN


 


This First Amendment to ESI Excess Pension Plan (“Plan”) is adopted by
ITT Educational Services, Inc. (“ESI”).


 


A.           ESI originally established the Plan
effective June 9, 1998.


 


B.             ESI now wishes to amend the Plan as
permitted under Section 10.01 of the Plan.


 


Recitals


 


Amendment


 


Effective January 1, 2003, Article VII of the Plan is amended
as follows:


 


ARTICLE VII


BENEFIT CLAIMS PROCEDURES


 


Section 7.01.  General
Procedure.  Claims for
benefits under the Plan must be made in writing to the Committee or its
designee.  If a claim for benefits is
wholly or partially denied, the Committee or its designee will notify the
Claimant of the claim’s denial within a reasonable period of time.  The Committee or its designee is authorized
to develop more fully the Plan’s general benefit claims procedures by
establishing from time to time various rules and procedures.


 


Within
60 days after the Claimant’s receipt of written notice of the claim’s
denial, the Claimant, or his duly authorized representative, may file a written
request with the Committee requesting a full and fair review of the denial of
the Claimant’s claim for benefits.  In
connection with the Claimant’s appeal of the denial of his claim for benefits, the
Claimant may review pertinent documents in the Committee’s possession and may
submit issues and comments in writing. 
The Committee will make a decision on review promptly after receipt of
the Claimant’s request for review.  The
decision on review will be in writing and written in a manner calculated to be
understood by the Claimant, will set forth the specific reason or reasons for
the decision, and will contain a specific reference to the pertinent Plan
provisions on which the decision is based. 
If the decision on review is not furnished to the Claimant within
60 days of receipt of the request for review, the claim will be deemed
denied on review.


 


Section 7.02.  Special Procedure for Certain Disability
Claims.  If a Claimant
requests a benefit on account of disability, the Claimant is not a participant
in ESI’s long-term disability plan, and the claim for the benefit is denied,
special rules apply.  In this situation,
the Committee must notify the Claimant of the denial within 45 days after
the claim for benefits is filed.  This
time period may be extended twice by 30 days if the Committee:  (1) determines that the extension is
required due to matters beyond its control and (2) notifies the Claimant
of the circumstances requiring the extension of time and the date by which it
expects to render a decision.  If such
an extension is necessary due to the Claimant’s failure to submit the
information necessary to decide the claim, the notice of extension will
specifically describe the required information, and the Claimant will be
afforded at least 45 days from receipt of the notice within which to
provide the specific information.  If
the Claimant delivers the requested information within the time specified, any
30 day extension period will begin after the Claimant


 


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has provided that information.  If the Claimant fails to deliver the
requested information within the time specified, the Committee may decide a
claim without that information.


 


The Committee will send the Claimant a
written statement explaining in detail the reasons for the denial.  The written statement will explain the
specific reason(s) for the denial and: 
(1) identify the Plan provision(s) on which the denial is based;
(2) identify any additional material or information needed to complete the
claim and why that information is necessary; (3) describe the Plan
procedures and time limits for appealing the denial, the Claimant’s right to
obtain information about those procedures, and the right to sue in federal
court; and (4) disclose any internal rule, guidelines, protocol or similar
criterion relied on in making the adverse determination (or state that the
information will be provided free of charge upon request).


 


The Claimant will then have the right to ask
the Committee to review the denial of the claim.  This request must be made in writing to the Committee within
180 days after the claim is denied. 
The written request may be made by the Claimant or his or her authorized
representative.  The Committee will
provide a written decision to the Claimant within 45 days after the
Committee receives the Claimant’s signed, written request for review, unless
special circumstances require an additional period, up to 45 days, in
which case the Committee will notify the Claimant of the special circumstances
and the date by which the Committee expects to render its decision on
review.  If an extension is necessary
due to the Claimant’s failure to submit the information necessary to decide the
appeal, the notice of extension will specifically describe the required
information, and the Claimant will be afforded at least 45 days from
receipt of the notice to provide the specified information.  If the Claimant delivers the requested
information within the time specified, the 45 day extension of the appeal period
will begin after the Claimant has provided that information.  If the Claimant fails to deliver the
requested information within the time specified, the Committee may decide the
appeal without that information.


 


The following provisions apply to the right
of appeal:  (1) the Claimant will
have the opportunity to submit written comments, documents, or other
information in support its appeal; (2) upon request, the Claimant will
have access to all relevant documents as described by applicable U.S. Department
of Labor regulations; (3) the review will take into account all
information, whether or not presented or available at the initial
determination; (4) the initial determination will not be afforded any
deference; (5) the review will be conducted by a person different from the
person who made the initial determination and who is not the original
decisionmaker’s subordinate; (6) if the decision is made on the grounds of
a medical judgment, the Committee will consult with a health care professional
with appropriate training and experience, and the health care professional will
not be the individual who was consulted during the initial determination or
that person’s subordinate; and (7) the Committee will provide the Claimant
with the name of any medical or vocational expert who advised the Plan with
regard to the claim.


 


A notice that the request on appeal is denied
will contain the following information: 
(1) the specific reason(s) for the appeal determination; (2) a reference
to the specific Plan provision(s) on which the determination is based; (3) a
statement disclosing any internal rule, guidelines, protocol, or similar
criterion relied on in making the adverse determination (or a statement that
this information will be provided free of charge upon request); (4) a statement
describing the Claimant’s right to bring a civil suit under federal law;
(5) a statement that the Claimant is entitled to receive upon request, and
without charge, reasonable access to or copies


 


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of all documents, records or other information relevant to the
determination; and (6) the statement “You or your plan may have other voluntary
alternative dispute resolution options, such as mediation.  One way to find out what may be available is
to contact your local U.S. Department of Labor Office and your State Insurance
Regulatory Agency.” Unless a Claimant receives a notice of a claim or appeal
decision within the time limits above, the Claimant should proceed as if the
claim or appeal has been denied.


 


Section 7.03.  Exhaustion
of Remedy.  No Claimant may
institute any action or proceeding in any state or federal court of law or
equity or before any administrative tribunal or arbitrator for a claim for
benefits under the Plan until the Claimant has first exhausted the applicable
procedure set forth in this Article.


 


This First Amendment to ESI Excess Pension
Plan is executed this 1st day of May, 2003.


 


 


	
   

  	
   

  	
  ITT EDUCATIONAL SERVICES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Nina F. Esbin

  
	
   

  	
   

  	
  (Signature)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Nina F. Esbin

  
	
   

  	
   

  	
  (Printed)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  V.P., Human Resources

  
	
   

  	
   

  	
  (Title)

  



 


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