Exhibit 10.36


 


FIFTH AMENDMENT

OF ESI PENSION PLAN


 


This Fifth Amendment of ESI Pension Plan (the “Plan”) is adopted by
ITT Educational Services, Inc. (the “Employer”).


 


Background


 


A.                                   The
Employer originally established the Plan effective June 9, 1998.


 


B.                                     The
Plan has been amended by a First, Second, Third and Fourth Amendment.


 


C.                                     The
Employer now wishes to amend the Plan further.


 


Amendment


 


1.                                       Effective
January 1, 2002, Section 9.02 is amended to read as follows:


 


Section 9.02.  General Claims Procedures (Claims Not
Requiring a Determination of Disability by the Plan).  Except as provided in Section 9.03, the
following will apply to claims for benefits under the Plan.


 


(a)                                  If a claim is denied
in whole or in part, the Committee, within 90 days after receipt of the
claim, will give the claimant written notice of the denial.  If special circumstances require extension
of the 90-day response period, the Committee may extend the period for up to 90
additional days by notifying the claimant, within the original 90-day period,
of the extension, the reason for it, and when a decision can be expected.  The notice of a claim denial will state, in
a manner calculated to be understood by the claimant, the following:


 


(1)                                  the specific reason
or reasons for the denial;


 


(2)                                  specific reference to
the Plan provision or provisions on which the denial is based;


 


(3)                                  a description of any
additional material or information needed to perfect the claim, and why the
information is necessary; and


 


(4)                                  an explanation of the
appeal right and procedure described in Subsection (b).


 


(b)                                 A claimant whose claim
is denied, in whole or in part, will have the right to appeal to the Committee
for review of the denial.  The following
provisions will apply to that right of appeal:


 


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(1)                                  The request for
review must be filed with the Committee within 60 days after written
notice of denial of the claim.


 


(2)                                  The request must be
in writing signed by the claimant or his authorized representative.


 


(3)                                  The claimant will
have the right, upon request, to review records and documents in the possession
of the Committee relating to the claim.


 


(4)                                  The claimant may
submit issues, arguments, and other comments in writing to the Committee, with
any documentary evidence in support of his claim.


 


(5)                                  The decision by the
Committee will be given to the claimant in writing within 60 days after
receipt by the Committee of the claimant’s request for review.  If special circumstances require extension
of the 60-day period, the Committee may extend the 60-day period for up to 60
additional days by notifying the claimant, within the original 60-day period,
of the extension, the reason for it, and when a decision can be expected.  If the decision denies the claim, in whole
or in part, the decision will state the specific reasons for the denial,
including specific references to the Plan provision or provisions on which the
denial is based, all stated in language calculated to be understood by the
claimant.


 


2.                                       Effective
January 1, 2002, Section 9.03 is amended to read as follows:


 


Section 9.03.  Disability Claims Procedures.  These procedures will be followed with
respect to claims that require a determination of Disability under the
Plan.  The Committee will give the
claimant notice of the decision on his claim no later than 45 days after the
claim is filed.  This time period may be
extended twice by 30 days if the Committee (1) determine that the
extension is required due to matters beyond the control of the Plan and (2) notifies
the claimant of the circumstances requiring the extension of time and the date
by which the Committee expects to render a decision.  If 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 has provided that
information.  If the claimant fails to
deliver the requested information within the time specified, the Committee may
decide the claim without that information.


 


(a)                                  If a claim is denied,
in whole or in part, the notice of the benefit determination under the Plan
will state the following:


 


(1)                                  the specific reason
or reasons for the denial;


 


(2)                                  specific reference to
the Plan provision or provisions on which the denial is based;


 


(3)                                  a description of any
additional material or information needed to complete the claim and why the
information is necessary;


 


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(4)                                  a description of the
Plan procedures and time limits for appealing the determination, the claimant’s
right to obtain information about those procedures, and the right to sue in
federal court; and


 


(5)                                  disclosure of any
internal rule, guidelines, protocol or similar criterion relied on in making
the denial (or state that the information will be provided free of charge upon
request).


 


(b)                                 If a claim for
benefits based on a Disability is denied, the claimant will have 180 days from
the receipt of the Committee’s decision to appeal to the Committee for a review
of the denial.  The Committee’s decision
will be given to the claimant in writing, 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 upon which the Committee expects to render its determination 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 of his 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.  The health care professional will not be the
individual who was consulted during the initial determination or that person’s
subordinate.


 


(7)                                  The Committee will
provide the claimant with the name of any medical or vocational expert who
advised the Plan with regard to his claim.


 


(c)                                  A notice that the
request on appeal is denied will contain the following information:


 


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(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 the 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 of all documents, records or other information relevant to
the determination; and


 


(6)                                  the statement that
“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.”


 


3.                                       Effective
June 2, 2003, the definition of “Eligible Employee” at Section 2.01
is amended to read as follows:


 


“Eligible Employee” means an Employee other
than (a) a federal work study student; (b) a non-resident alien;
(c) a Leased Employee; (d) an Employee who is covered by a collective
bargaining agreement that does not provide for Plan membership; (e) an
Employee accruing benefits for current service under any other qualified
defined benefit plan or qualified defined contribution plan maintained by the
Employer or a Related Employer (other than the ESI 401(k) Plan);
(f) an Employee who first completes an Hour of Service on or after
June 2, 2003; or (g) an Employee who first completes an Hour of
Service before June 2, 2003, but terminates employment with the Employer
before completing a Year of Eligibility Service or a year of Continuous Service
and returns after incurring a one-year Break in Service or a one-year Period of
Severance.


 


This Fifth Amendment of ESI Pension Plan is executed this 28th
day of May, 2003.


 


	
   

  	
  ITT EDUCATIONAL SERVICES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Nina F. Esbin

  	
   

  
	
   

  	
   

  	
  (Signature)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Nina F. Esbin

  	
   

  
	
   

  	
   

  	
  (Printed)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Vice President, Human Resources

  	
   

  
	
   

  	
   

  	
  (Title)

  
	
   

  
	
  ATTEST:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Jenny Yonce

  	
   

  	
   

  
	
  (Signature)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Jenny Yonce

  	
   

  	
   

  
	
  (Printed)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Mgr, Benefits & HRIS

  	
   

  	
   

  
	
  (Title)

  	
   

  	
   

  
						



 


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