The accompanying notes are an integral part of these condensed consolidated financial statements.
The accompanying notes are an integral part of these condensed consolidated financial statements.
The accompanying notes are an integral part of these condensed consolidated financial statements.
The accompanying notes are an integral part of these condensed consolidated financial statements.
The accompanying notes are an integral part of these condensed consolidated financial statements.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
March 31, 2016
(Dollars in thousands, except per share data and unless otherwise stated)
1.
|
The Company and Basis of Presentation
|
ITT Educational Services, Inc. is a leading proprietary provider of postsecondary degree programs in the United States based
on revenue and student enrollment. References in these Notes to we, us and our refer to ITT Educational Services, Inc., its wholly-owned subsidiaries and the variable interest entities (VIEs) that it
consolidates, unless the context requires or indicates otherwise. As of March 31, 2016, we were offering:
|
|
|
master, bachelor and associate degree programs to approximately 43,000 students at ITT Technical Institute and Daniel Webster College locations; and
|
|
|
|
short-term information technology and business learning solutions for career advancers and other professionals.
|
As of March 31, 2016, we had 138 campus locations in 39 states. In addition, we offered one or more of our online degree programs to students who are
located in all 50 states. All of our campus locations are authorized by the applicable education authorities of the states in which they operate and are accredited by an accrediting commission recognized by the U.S. Department of Education
(ED). We have provided career-oriented education programs since 1969 under the ITT Technical Institute name and since 2009 under the Daniel Webster College name. Our corporate headquarters are located in Carmel,
Indiana.
The accompanying unaudited condensed consolidated financial statements include the accounts of ITT Educational Services, Inc.,
its wholly-owned subsidiaries and, beginning on February 28, 2013 and September 30, 2014, two VIEs that we consolidate in our consolidated financial statements, and have been prepared in accordance with generally accepted accounting
principles in the United States (GAAP) for interim periods and pursuant to the rules and regulations of the U.S. Securities and Exchange Commission (SEC). Certain information and footnote disclosures, including significant
accounting policies, normally included in a complete presentation of financial statements prepared in accordance with those principles, rules and regulations have been omitted. All significant intercompany balances and transactions are eliminated
upon consolidation. The Condensed Consolidated Balance Sheet as of December 31, 2015 was derived from audited financial statements but, as presented in this report, may not include all disclosures required by GAAP.
We reclassified debt issuance costs that were previously reported in the line item Other assets on our Condensed Consolidated Balance Sheets
as of December 31, 2015 and March 31, 2015 to the line items Current portion of term loans and Term loans, excluding current portion, upon adoption of Financial Accounting Standards Board (FASB) Accounting Standards Update
(ASU) No. 2015-03, Simplifying the Presentation of Debt Issuance Costs (ASU 2015-03). These reclassifications had no impact on previously reported net income, total shareholders equity or cash flows.
See Note 8 Debt, for the amount of debt issuance costs that were reclassified.
We review the operations of our business on a
regular basis to determine our reportable operating segments, as defined in Accounting Standards Codification (ASC or Codification) 280, Segment Reporting. As of March 31, 2016, December 31, 2015
and March 31, 2015, we reported our financial results under one reportable operating segment.
In the opinion of our management, the
condensed consolidated financial statements reflect all adjustments that are normal, recurring and necessary for a fair presentation of our financial condition and results of operations. The interim financial information should be read in
conjunction with the audited consolidated financial statements and notes thereto contained in our Annual Report on Form 10-K for the fiscal year ended December 31, 2015 (2015 Form 10-K) as filed with the SEC.
2.
|
New Accounting Guidance and Adoption of New Accounting Guidance
|
New Accounting Guidance.
In March 2016, the FASB issued ASU No. 2016-09, Improvement to Employee
Share-Based Payment Accounting (ASU 2016-09), which is included in the Codification under ASC 718, Compensation Stock Compensation (ASC 718). This guidance simplifies several aspects of the accounting
for employee share-based payment transactions, including the income tax consequences, classification of awards as either equity or liabilities and classification on the statement of cash flows. This guidance will be effective for our interim and
annual reporting periods beginning January 1, 2017, with early adoption permitted. A modified retrospective approach is to be used for certain parts of this guidance, while other parts of the guidance are to be applied using a retrospective or
prospective approach. We are assessing the impact that ASU 2016-09 may have on our consolidated financial statements.
In February 2016,
the FASB issued ASU No. 2016-02, Leases (ASU 2016-02), which is included in the Codification under ASC 840, Leases (ASC 840). This guidance introduces a new lessee model that brings substantially
all leases on the
6
balance sheet and represents a significant change to lease accounting. This guidance will be effective for our interim and annual reporting periods beginning January 1, 2019, with early
adoption permitted. A modified retrospective approach is to be used for the adoption of this guidance. We are assessing the impact that ASU 2016-02 may have on our consolidated financial statements.
In November 2015, the FASB issued ASU No. 2015-17, Income Taxes (ASU 2015-17), which is included in the
Codification under ASC 740, Income Taxes (ASC 740). This guidance simplifies the presentation of deferred income taxes by requiring that deferred income tax liabilities and assets be classified as noncurrent in a classified
statement of financial position. This guidance will be effective for our interim and annual reporting periods beginning January 1, 2017. Earlier adoption is permitted as of the beginning of an interim or annual reporting period. The amendments
in ASU 2015-17 may be applied either prospectively to all deferred income tax liabilities and assets or retrospectively to all periods presented. We are assessing the impact that this guidance may have on our consolidated financial statements.
In July 2015, the FASB issued ASU No. 2015-11, Inventory (ASU 2015-11), which is included in the Codification
under ASC 330, Inventory (ASC 330). This guidance requires inventory to be measured at the lower of cost and net realizable value under certain circumstances. Current guidance requires inventory to be measured at the lower of
cost or market value, where market value could be either replacement cost, net realizable value, or net realizable value less a normal profit margin. This guidance will be effective for our interim and annual reporting periods beginning
January 1, 2017, with early adoption permitted. A prospective approach is to be used for the adoption of this guidance. We do not expect the adoption of ASU 2015-11 to have a material impact on our consolidated financial statements.
In August 2014, the FASB issued ASU No. 2014-15, Presentation of Financial Statements Going Concern (ASU
2014-15), which is included in the Codification under ASC 205, Presentation of Financial Statements (ASC 205). This guidance was issued to define managements responsibility to evaluate whether there is substantial
doubt about an entitys ability to continue as a going concern and to provide related footnote disclosure in certain circumstances. Under the new guidance, management is required to evaluate, at each annual and interim reporting period, whether
there are conditions or events that raise substantial doubt about the entitys ability to continue as a going concern within one year after the date the financial statements are issued and to provide related disclosures. The guidance will be
effective for our interim and annual reporting periods beginning January 1, 2017, with early adoption permitted. A prospective approach is to be used for the adoption of this guidance. We are assessing the impact that this guidance may have on
our consolidated financial statements.
In May 2014, the FASB issued ASU No. 2014-09, Revenue from Contracts with
Customers (ASU 2014-09), which is included in the Codification under ASC 606, Revenue From Contracts With Customers (ASC 606). This guidance requires the recognition of revenue to depict the transfer of
promised goods or services to customers in an amount that reflects the consideration expected in exchange for those goods or services. Originally, this guidance was to become effective for our interim and annual reporting periods beginning
January 1, 2017. In August 2015, the FASB issued ASU No. 2015-14, which defers the effective date of ASU 2014-09 by one year. Therefore, ASU 2014-09 will become effective for our interim and annual reporting periods beginning
January 1, 2018. Early adoption is permitted, but not any earlier than the original effective date. A full retrospective or a modified retrospective approach may be used for the adoption of this guidance. We are assessing the impact that this
guidance may have on our consolidated financial statements.
Adoption of New Accounting Guidance.
In September 2015, the
FASB issued ASU No. 2015-16, Simplifying the Accounting for Measurement Period Adjustments (ASU 2015-16), which is included in the Codification under ASC 805, Business Combinations (ASC 805). This
guidance simplifies the accounting for adjustments made to provisional amounts recognized in a business combination and requires that the acquirer recognize adjustments to provisional amounts that are identified during the measurement period in the
reporting period in which the adjustment amount is determined. The acquirer is also required to record, in the same periods financial statements, the effect on earnings of changes in depreciation, amortization or other income effects, if any,
as a result of the change to the provisional amounts. In addition, an entity is required to present separately on the face of its financial statements or disclose in the notes to its financial statements, the portion of the amount recorded in
current-period earnings by line item that would have been recorded in previous reporting periods if the adjustment to the provisional amounts had been recognized as of the acquisition date. This guidance became effective for our interim and annual
reporting periods beginning January 1, 2016 and was applied prospectively. The adoption of ASU 2015-16 did not have a material impact on our consolidated financial statements.
In April 2015, the FASB issued ASU 2015-03 which is included in the Codification under ASC 835, Interest (ASC 835).
This guidance requires that debt issuance costs related to a recognized debt liability be presented on the balance sheet as a direct deduction from the carrying amount of that liability. This guidance became effective for our interim and annual
reporting periods beginning January 1, 2016 and was applied retrospectively. The adoption of ASU 2015-03 did not have a material impact on our consolidated financial statements.
In February 2015, the FASB issued ASU No. 2015-02, Amendment to the Consolidation Analysis (ASU 2015-02), which
is included in the Codification under ASC 810. This guidance changes the analysis that an entity must perform to determine whether it should consolidate certain types of legal entities. This guidance became effective for our interim and annual
reporting periods beginning January 1, 2016 and was applied prospectively. The adoption of ASU 2015-02 did not have a material impact on our consolidated financial statements.
7
In January 2015, the FASB issued ASU No. 2015-01, Income Statement
Extraordinary and Unusual Items (ASU 2015-01), which is included in the Codification under ASC 225, Income Statement (ASC 225). This guidance eliminates the concept of extraordinary items from GAAP. This
guidance became effective for our interim and annual reporting periods beginning January 1, 2016 and was applied prospectively. The adoption of ASU 2015-01 did not have a material impact on our consolidated financial statements.
3.
|
Fair Value and Credit Risk of Financial Instruments
|
Fair value for financial reporting is defined as the price that would be received upon the sale of an asset or paid upon the
transfer of a liability in an orderly transaction between market participants at the measurement date. The fair value measurement of our financial assets utilized assumptions categorized as observable inputs under the accounting guidance. Observable
inputs are assumptions based on independent market data sources.
The following table sets forth information regarding the recurring fair
value measurement of our financial assets as reflected on our Condensed Consolidated Balance Sheet as of March 31, 2016:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fair Value Measurements at Reporting Date Using
|
|
Description
|
|
As of
March 31, 2016
|
|
|
(Level 1)
Quoted Prices in
Active Markets for
Identical Assets
|
|
|
(Level 2)
Significant Other
Observable Inputs
|
|
|
(Level 3)
Significant
Unobservable
Inputs
|
|
Cash equivalents:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Money market fund
|
|
$
|
102,127
|
|
|
$
|
102,127
|
|
|
$
|
0
|
|
|
$
|
0
|
|
Restricted cash:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Money market fund
|
|
|
474
|
|
|
|
474
|
|
|
|
0
|
|
|
|
0
|
|
Collateral deposits:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Money market fund
|
|
|
8,632
|
|
|
|
8,632
|
|
|
|
0
|
|
|
|
0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
111,233
|
|
|
$
|
111,233
|
|
|
$
|
0
|
|
|
$
|
0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The following table sets forth information regarding the recurring fair value measurement of our financial
assets as reflected on our Condensed Consolidated Balance Sheet as of December 31, 2015:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fair Value Measurements at Reporting Date Using
|
|
Description
|
|
As of
December 31, 2015
|
|
|
(Level 1)
Quoted Prices in
Active Markets for
Identical Assets
|
|
|
(Level 2)
Significant Other
Observable Inputs
|
|
|
(Level 3)
Significant
Unobservable
Inputs
|
|
Cash equivalents:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Money market fund
|
|
$
|
130,821
|
|
|
$
|
130,821
|
|
|
$
|
0
|
|
|
$
|
0
|
|
Restricted cash:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Money market fund
|
|
|
585
|
|
|
|
585
|
|
|
|
0
|
|
|
|
0
|
|
Collateral deposits:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Money market fund
|
|
|
8,631
|
|
|
|
8,631
|
|
|
|
0
|
|
|
|
0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
140,037
|
|
|
$
|
140,037
|
|
|
$
|
0
|
|
|
$
|
0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The following table sets forth information regarding the recurring fair value measurement of our financial
assets as reflected on our Condensed Consolidated Balance Sheet as of March 31, 2015:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fair Value Measurements at Reporting Date Using
|
|
Description
|
|
As of
March 31, 2015
|
|
|
(Level 1)
Quoted Prices in
Active Markets for
Identical Assets
|
|
|
(Level 2)
Significant Other
Observable Inputs
|
|
|
(Level 3)
Significant
Unobservable
Inputs
|
|
Cash equivalents:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Money market fund
|
|
$
|
141,930
|
|
|
$
|
141,930
|
|
|
$
|
0
|
|
|
$
|
0
|
|
Restricted cash:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Money market fund
|
|
|
1,811
|
|
|
|
1,811
|
|
|
|
0
|
|
|
|
0
|
|
Collateral deposits:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Money market fund
|
|
|
8,629
|
|
|
|
8,629
|
|
|
|
0
|
|
|
|
0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
152,370
|
|
|
$
|
152,370
|
|
|
$
|
0
|
|
|
$
|
0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8
We used quoted prices in active markets for identical assets as of the measurement dates to value
our financial assets that were categorized as Level 1.
The carrying value for cash and cash equivalents, restricted cash, accounts
receivable, accounts payable and other current liabilities approximate fair value, because of the immediate or short-term maturity of these financial instruments. We did not have any financial assets or liabilities recorded at estimated fair value
on a non-recurring basis on our Condensed Consolidated Balance Sheets as of March 31, 2016, December 31, 2015 or March 31, 2015. As of March 31, 2016 and December 31, 2015, the carrying value of a building that we
considered held-for-sale was approximately $2,300, and was included in Prepaid expenses and other current assets on our Condensed Consolidated Balance Sheets. The carrying value of that building as of those dates was approximately equal to its
estimated fair value, less selling costs. In the three months ended March 31, 2016, we recorded an impairment charge of approximately $543 to reduce the carrying value of another building to its estimated fair value. The estimated fair value of
that building was approximately $2,600 and was included in Property and equipment, net on our Condensed Consolidated Balance Sheet as of March 31, 2016. We considered the results of independent appraisals and other available market data to
determine the estimated fair value of the buildings as of March 31, 2016.
As of March 31, 2016, the aggregate carrying value of
the private education loans (PEAKS Trust Student Loans) owned by a trust (the PEAKS Trust) that purchased, owns and collects private education loans made under the PEAKS Private Student Loan Program (the PEAKS
Program) and the private education loans (CUSO Student Loans) owned by an entity (the CUSO) that purchased, owns and collects private education loans made under a private education loan program for our students (the
CUSO Program) was $64,699 and the estimated fair value was approximately $75,000. As of March 31, 2015, the aggregate carrying value of the PEAKS Trust Student Loans and the CUSO Student Loans (collectively, the Private
Education Loans) was $86,069 and the estimated fair value was approximately $95,774. The fair value of the Private Education Loans was estimated using the income approach with estimated discounted expected cash flows. We utilized inputs that
were unobservable in determining the estimated fair value of the Private Education Loans. The significant inputs used in determining the estimated fair value included the default rate, repayment rate and discount rate. Fair value measurements that
utilize significant unobservable inputs are categorized as Level 3 measurements under the accounting guidance.
As of March 31, 2016,
the carrying value of our debt under our Financing Agreement (as defined in Note 8Debt) was $49,623 and the estimated fair value was approximately $50,000. As of March 31, 2015, the carrying value of our debt under our Financing Agreement
was $93,229 and the estimated fair value was approximately $94,000. The fair value of our debt under our Financing Agreement was estimated by discounting the future cash flows using current rates for similar loans with similar characteristics and
remaining maturities. We utilized inputs that were unobservable in determining the estimated fair value of our debt under the Financing Agreement. The significant input used in determining the estimated fair value was the discount rate utilized for
credit and liquidity purposes. Fair value measurements that utilize significant unobservable inputs are categorized as Level 3 measurements under the accounting guidance.
As of March 31, 2016, the carrying value of the senior debt issued by the PEAKS Trust in the initial aggregate principal amount of
$300,000 (the PEAKS Senior Debt) was $44,550 and the estimated fair value was approximately $38,000. As of March 31, 2015, the carrying value of the PEAKS Senior Debt was $71,660 and the estimated fair value was approximately
$72,348. The fair value of the PEAKS Senior Debt was estimated using the income approach with estimated discounted cash flows. We utilized inputs that were unobservable in determining the estimated fair value of the PEAKS Senior Debt. The
significant input used in determining the estimated fair value was the discount rate utilized for both credit and liquidity purposes. Fair value measurements that utilize significant unobservable inputs are categorized as Level 3 measurements under
the accounting guidance.
As of March 31, 2016, the carrying value of the liability that the CUSO was required to record (the
CUSO Secured Borrowing Obligation) on its balance sheet for the cash received from the owners of the CUSO (the CUSO Participants), which liability we now consolidate, was $107,760 and the estimated fair value was
approximately $76,000. As of March 31, 2015, the carrying value of the CUSO Secured Borrowing Obligation was $117,189 and the estimated fair value was approximately $115,211. The fair value of the CUSO Secured Borrowing Obligation was estimated
using the income approach with estimated discounted cash flows. We utilized inputs that were unobservable in determining the estimated fair value of the CUSO Secured Borrowing Obligation. The significant input used in determining the estimated fair
value was the discount rate utilized for both credit and liquidity purposes. Fair value measurements that utilize significant unobservable inputs are categorized as Level 3 measurements under the accounting guidance.
Financial instruments that potentially subject us to credit risk consist primarily of accounts receivable, cash equivalents and the Private
Education Loans. There is no concentration of credit risk of our accounts receivable, as the total is comprised of a large number of individual balances owed by students whose credit profiles vary and who are located throughout the United States.
Our cash equivalents generally consist of money market funds which invest in high-quality securities issued by various entities. The Private Education Loans consist of a large number of individual loans owed by borrowers, whose credit profiles vary
and who are located throughout the United States.
9
The amount of stock-based compensation expense and the line items in which those amounts are included in our Condensed
Consolidated Statements of Operations and the related estimated income tax benefit recognized in the periods indicated were as follows:
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
March 31,
|
|
|
|
2016
|
|
|
2015
|
|
Cost of educational services
|
|
$
|
708
|
|
|
$
|
942
|
|
Student services and administrative expenses
|
|
|
519
|
|
|
|
954
|
|
|
|
|
|
|
|
|
|
|
Total stock-based compensation expense
|
|
$
|
1,227
|
|
|
$
|
1,896
|
|
Income tax (benefit)
|
|
$
|
(472
|
)
|
|
$
|
(730
|
)
|
As of March 31, 2016, we estimated that pre-tax compensation expense for unvested stock-based
compensation grants in the amount of approximately $3,900, net of estimated forfeitures, will be recognized in future periods. This expense will be recognized over the remaining service period applicable to the grantees which, on a weighted-average
basis, is approximately 1.6 years.
The stock options granted, forfeited, exercised and expired in the period indicated were as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, 2016
|
|
|
|
# of
Shares
|
|
|
Weighted
Average
Exercise
Price
|
|
|
Aggregate
Exercise
Price
|
|
|
Weighted
Average
Remaining
Contractual Term
|
|
|
Aggregate
Intrinsic
Value
(1)
|
|
Outstanding at beginning of period
|
|
|
1,088,208
|
|
|
$
|
70.21
|
|
|
$
|
76,405
|
|
|
|
|
|
|
|
|
|
Granted
|
|
|
159,000
|
|
|
$
|
3.57
|
|
|
|
568
|
|
|
|
|
|
|
|
|
|
Forfeited
|
|
|
0
|
|
|
$
|
0
|
|
|
|
0
|
|
|
|
|
|
|
|
|
|
Exercised
|
|
|
0
|
|
|
$
|
0
|
|
|
|
0
|
|
|
|
|
|
|
|
|
|
Expired
|
|
|
(188,500
|
)
|
|
$
|
121.56
|
|
|
|
(22,914
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding at end of period
|
|
|
1,058,708
|
|
|
$
|
51.06
|
|
|
$
|
54,059
|
|
|
|
1.9
|
|
|
$
|
0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exercisable at end of period
|
|
|
736,061
|
|
|
$
|
69.17
|
|
|
$
|
50,913
|
|
|
|
1.7
|
|
|
$
|
0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
The aggregate intrinsic value of the stock options was calculated by identifying those stock options that had a lower exercise price than the closing market price of our common stock on March 31, 2016 and
multiplying the difference between the closing market price of our common stock and the exercise price of each of those stock options by the number of shares subject to those stock options that were outstanding or exercisable, as applicable. Since
the closing market price of our common stock on March 31, 2016 was lower than the exercise price of all outstanding stock options and exercisable stock options, the aggregate intrinsic value of the stock options was zero.
|
The following table sets forth information regarding the stock options granted and exercised in the periods indicated:
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
March 31,
|
|
|
|
2016
|
|
|
2015
|
|
Shares subject to stock options granted
|
|
|
159,000
|
|
|
|
0
|
|
Weighted average grant date fair value per share
|
|
$
|
2.09
|
|
|
$
|
0
|
|
Shares subject to stock options exercised
|
|
|
0
|
|
|
|
0
|
|
Intrinsic value of stock options exercised
|
|
$
|
0
|
|
|
$
|
0
|
|
Proceeds received from stock options exercised
|
|
$
|
0
|
|
|
$
|
0
|
|
Tax benefits realized from stock options exercised
|
|
$
|
0
|
|
|
$
|
0
|
|
The intrinsic value of a stock option is the difference between the fair market value of the stock and the option exercise
price.
The fair value of each stock option grant was estimated on the date of grant using the following assumptions in the periods
indicated:
|
|
|
|
|
|
|
|
|
Three Months Ended
March 31,
|
|
|
2016
|
|
|
2015
|
Risk-free interest rates
|
|
|
1.3
|
%
|
|
Not applicable
|
Expected lives (in years)
|
|
|
4.8
|
|
|
Not applicable
|
Volatility
|
|
|
75.0
|
%
|
|
Not applicable
|
Dividend yield
|
|
|
None
|
|
|
Not applicable
|
For the three months ended March 31, 2015, the assumptions listed above were not applicable because we did not grant any
stock options in that period.
10
The following table sets forth the number of restricted stock units (RSUs) that were
granted, forfeited and vested in the period indicated:
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
March 31, 2016
|
|
|
|
# of RSUs
|
|
|
Weighted Average
Grant Date
Fair Value
|
|
Unvested at beginning of period
|
|
|
793,019
|
|
|
$
|
14.18
|
|
Granted
|
|
|
411,224
|
|
|
|
3.56
|
|
Forfeited
|
|
|
(47,837
|
)
|
|
|
10.21
|
|
Vested
|
|
|
(37,350
|
)
|
|
|
18.23
|
|
|
|
|
|
|
|
|
|
|
Unvested at end of period
|
|
|
1,119,056
|
|
|
$
|
10.31
|
|
|
|
|
|
|
|
|
|
|
The total fair market value of the RSUs that vested and were settled in shares of our common stock was:
|
|
|
$99 in the three months ended March 31, 2016; and
|
|
|
|
$1,260 in the three months ended March 31, 2015.
|
5.
|
Variable Interest Entities
|
Under ASC 810, an entity that holds a variable interest in a VIE and meets certain requirements would be considered to be
the primary beneficiary of the VIE and required to consolidate the VIE in its consolidated financial statements. In order to be considered the primary beneficiary of a VIE, an entity must hold a variable interest in the VIE and have both:
|
|
|
the power to direct the activities that most significantly impact the economic performance of the VIE; and
|
|
|
|
the right to receive benefits from, or the obligation to absorb losses of, the VIE that could be potentially significant to the VIE.
|
We hold variable interests in the PEAKS Trust as a result of:
|
|
|
a subordinated note issued to us by the PEAKS Trust in exchange for the portion of each private education loan disbursed to us under the PEAKS Program that we transferred to the PEAKS Trust (Subordinated
Note); and
|
|
|
|
our guarantee of the payment of the principal and interest owed on the PEAKS Senior Debt, the administrative fees and expenses of the PEAKS Trust and a minimum required ratio of assets of the PEAKS Trust to outstanding
PEAKS Senior Debt (PEAKS Guarantee).
|
We hold variable interests in the CUSO as a result of:
|
|
|
a risk sharing agreement (the CUSO RSA) that we entered into with the CUSO in connection with the CUSO Program; and
|
|
|
|
a revolving note owed to us by the CUSO (the Revolving Note).
|
Primary
Beneficiary Analysis
.
The PEAKS Trust and the CUSO are VIEs as defined under ASC 810. To determine whether we are the primary beneficiary of the PEAKS Trust or the CUSO, we:
|
|
|
assessed the risks that the VIE was designed to create and pass through to its variable interest holders;
|
|
|
|
identified the variable interests in the VIE;
|
|
|
|
identified the other variable interest holders and their involvement in the activities of the VIE;
|
|
|
|
identified the activities that most significantly impact the VIEs economic performance;
|
|
|
|
determined whether we have the power to direct those activities; and
|
|
|
|
determined whether we have the right to receive the benefits from, or the obligation to absorb the losses of, the VIE that could potentially be significant to the VIE.
|
We determined that the activities of the PEAKS Trust and the CUSO that most significantly impact the economic performance of the PEAKS Trust
and the CUSO involve the servicing (which includes the collection) of the PEAKS Trust Student Loans and the CUSO Student Loans. To make that determination, we analyzed various possible scenarios of student loan portfolio performance to evaluate the
potential economic impact on the PEAKS Trust and the CUSO. In our analysis, we made what we believe are reasonable assumptions based on historical data for the following key variables:
|
|
|
the composition of the credit profiles of the borrowers;
|
|
|
|
the interest rates and fees charged on the loans;
|
|
|
|
the default rates and the timing of defaults associated with similar types of loans; and
|
|
|
|
the prepayment and the speed of repayment associated with similar types of loans.
|
Based on
our analysis, we concluded that we became the primary beneficiary of the PEAKS Trust on February 28, 2013. This was the first date that we had the power to direct the activities of the PEAKS Trust that most significantly impact the economic
11
performance of the PEAKS Trust, because we could have exercised our right to terminate the servicing agreement that governs the servicing activities of the PEAKS Trust Student Loans (the
PEAKS Servicing Agreement), due to the failure of the entity that performs those servicing activities for the PEAKS Trust Student Loans on behalf of the PEAKS Trust to meet certain performance criteria specified in the PEAKS Servicing
Agreement. We have not, however, exercised our right to terminate the PEAKS Servicing Agreement. As a result of our primary beneficiary conclusion, we consolidated the PEAKS Trust in our consolidated financial statements beginning on
February 28, 2013 (the PEAKS Consolidation). Prior to February 28, 2013, the PEAKS Trust was not required to be consolidated in our consolidated financial statements, because we concluded that we were not the primary
beneficiary of the PEAKS Trust prior to that time. The PEAKS Trust is discussed in more detail below.
Our consolidated financial
statements for periods as of and after February 28, 2013 include the PEAKS Trust, because we were considered to have control over the PEAKS Trust under ASC 810, as a result of our substantive unilateral right to terminate the PEAKS Servicing
Agreement. We do not, however, actively manage the operations of the PEAKS Trust, and the assets of the consolidated PEAKS Trust can only be used to satisfy the obligations of the PEAKS Trust. Our obligations under the PEAKS Guarantee remain in
effect, until the PEAKS Senior Debt and the PEAKS Trusts fees and expenses are paid in full. See Note 11 Commitments and Contingencies, for a further discussion of the PEAKS Guarantee.
Based on our analysis, we concluded that we became the primary beneficiary of the CUSO on September 30, 2014. This was the first date
that we determined we had the power to direct the activities of the CUSO that most significantly impact the economic performance of the CUSO, because the entity that performs the servicing activities on behalf of the CUSO (the CUSO Program
Servicer) failed to meet certain performance criteria specified in the servicing agreement that governs the servicing activities of the CUSO Student Loans (the CUSO Servicing Agreement) on that date. The CUSO Servicing Agreement
provides that in the event that the CUSO Program Servicer fails to meet certain performance criteria specified in the CUSO Servicing Agreement, and the CUSO Program Servicer does not affect a cure of that failure during a specified cure period, we
would have the right to terminate the CUSO Servicing Agreement. We determined that it was not reasonably possible that the CUSO Program Servicer would be able to affect a cure during the specified cure period and, therefore, because the cure period
was not substantive, we effectively had the right to terminate the CUSO Servicing Agreement as of the date that the CUSO Program Servicer failed to meet the performance criteria. We have provided notice of termination of the CUSO Servicing
Agreement, however, the termination will not be effective until a successor services has been retained by the CUSO.
As a result of our
primary beneficiary conclusion, we consolidated the CUSO in our consolidated financial statements beginning on September 30, 2014. Prior to September 30, 2014, the CUSO was not required to be consolidated in our consolidated financial
statements, because we concluded that we were not the primary beneficiary of the CUSO prior to that time. The CUSO is discussed in more detail below.
Our consolidated financial statements for periods as of and after September 30, 2014 include the CUSO, because we were considered to have
control over the CUSO under ASC 810, as a result of our substantive right to terminate the CUSO Servicing Agreement after a cure period that was not substantive. We do not, however, actively manage the operations of the CUSO, and the assets of the
consolidated CUSO can only be used to satisfy the obligations of the CUSO. Our obligations under the CUSO RSA remain in effect, until all CUSO Student Loans are paid in full. See Note 11Commitments and Contingencies, for a further discussion
of the CUSO RSA.
PEAKS Program.
On January 20, 2010, we entered into agreements with unrelated third parties to
establish the PEAKS Program, which was a private education loan program for our students. We entered into the PEAKS Program to offer our students another source of private education loans that they could use to help pay their education costs owed to
us and to supplement the limited amount of private education loans available to our students under other private education loan programs, including the CUSO Program. Under the PEAKS Program, our students had access to a greater amount of private
education loans, which resulted in a reduction in the amount of internal financing that we provided to our students in 2010 and 2011. No new private education loans were or will be originated under the PEAKS Program after July 2011, but immaterial
amounts related to loans originated prior to that date were disbursed by the lender through March 2012.
Under the PEAKS Program, an
unrelated lender originated private education loans to our eligible students and, subsequently, sold those loans to the PEAKS Trust. The PEAKS Trust issued the PEAKS Senior Debt to investors. The lender disbursed the proceeds of the private
education loans to us for application to the students account balances with us that represented their unpaid education costs. We transferred a portion of the amount of each private education loan disbursed to us under the PEAKS Program to the
PEAKS Trust in exchange for the Subordinated Note.
The Subordinated Note issued by the PEAKS Trust to us does not bear interest and
matures in March 2026. Principal is due on the Subordinated Note following:
|
|
|
the repayment of the PEAKS Senior Debt;
|
|
|
|
the repayment of fees and expenses of the PEAKS Trust; and
|
|
|
|
the reimbursement of the amounts of any payments made by us under the PEAKS Guarantee.
|
The
carrying value of the Subordinated Note was eliminated from our consolidated balance sheet when we consolidated the PEAKS Trust in our consolidated financial statements beginning on February 28, 2013. In the three months ended December 31,
2012, we determined it was probable that we would not collect the carrying value of the Subordinated Note and, therefore, recorded an impairment charge for the total carrying value of the Subordinated Note.
12
The PEAKS Trust utilized the proceeds from the issuance of the PEAKS Senior Debt and the
Subordinated Note to purchase the private education loans made by the lender to our students. The assets of the PEAKS Trust (which include, among other assets, the PEAKS Trust Student Loans) serve as collateral for, and are intended to be the
principal source of, the repayment of the PEAKS Senior Debt and the Subordinated Note.
Assets and Liabilities of the PEAKS
Trust
. We concluded that we became the primary beneficiary of the PEAKS Trust on February 28, 2013 and, therefore, were required to consolidate the PEAKS Trust in our consolidated financial statements. The following table sets forth the
carrying value of assets and liabilities of the PEAKS Trust that were included on our Condensed Consolidated Balance Sheets as of the dates indicated:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of
|
|
|
|
March 31,
2016
|
|
|
December 31,
2015
|
|
|
March 31,
2015
|
|
Assets
|
|
|
|
|
|
|
|
|
|
|
|
|
Restricted cash
|
|
$
|
1,820
|
|
|
$
|
1,462
|
|
|
$
|
1,727
|
|
Current portion of PEAKS Trust student loans
|
|
|
5,536
|
|
|
|
5,746
|
|
|
|
6,475
|
|
PEAKS Trust student loans, excluding current portion, less allowance for loan losses of $17,122,
$21,816 and $39,596
|
|
|
42,196
|
|
|
|
45,987
|
|
|
|
57,596
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets
|
|
$
|
49,552
|
|
|
$
|
53,195
|
|
|
$
|
65,798
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liabilities
|
|
|
|
|
|
|
|
|
|
|
|
|
Current portion of PEAKS Trust senior debt
|
|
$
|
15,634
|
|
|
$
|
20,105
|
|
|
$
|
26,533
|
|
Other current liabilities
|
|
|
0
|
|
|
|
191
|
|
|
|
175
|
|
PEAKS Trust senior debt, excluding current portion
|
|
|
28,916
|
|
|
|
30,701
|
|
|
|
45,127
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities
|
|
$
|
44,550
|
|
|
$
|
50,997
|
|
|
$
|
71,835
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The assets of the PEAKS Trust can only be used to satisfy the obligations of the PEAKS Trust. Payment of the
administrative fees and expenses of the PEAKS Trust and the principal and interest owed on the PEAKS Senior Debt are guaranteed by us under the PEAKS Guarantee.
Revenue and Expenses of the PEAKS Trust
. The following table sets forth the revenue and expenses of the PEAKS Trust, which were
included in our Condensed Consolidated Statements of Operations for the periods indicated:
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
March 31,
|
|
|
|
2016
|
|
|
2015
|
|
Revenue
|
|
$
|
2,002
|
|
|
$
|
2,413
|
|
Student services and administrative expenses
|
|
|
495
|
|
|
|
541
|
|
Provision for private education loan losses
|
|
|
1,483
|
|
|
|
803
|
|
Interest expense
|
|
|
1,758
|
|
|
|
3,259
|
|
|
|
|
|
|
|
|
|
|
(Loss) before provision for income taxes
|
|
$
|
(1,734
|
)
|
|
$
|
(2,190
|
)
|
|
|
|
|
|
|
|
|
|
The revenue of the PEAKS Trust consists of interest income on the PEAKS Trust Student Loans, which is the
accretion of the accretable yield on the PEAKS Trust Student Loans. The servicing, administrative and other fees incurred by the PEAKS Trust are included in Student services and administrative expenses in our Condensed Consolidated Statements of
Operations. The provision for private education loan losses represents the increase in the allowance for loan losses that occurred during the period. The allowance for loan losses related to the PEAKS Trust Student Loans represents the difference
between the carrying value and the total present value of the expected principal and interest collections of each loan pool of the PEAKS Trust Student Loans, discounted by the loan pools effective interest rate as of the end of the reporting
period. Interest expense of the PEAKS Trust represents interest expense on the PEAKS Senior Debt, which includes the contractual interest obligation and the accretion of the discount on the PEAKS Senior Debt.
PEAKS Guarantee
. Under the PEAKS Guarantee, we guarantee payment of the principal and interest owed on the PEAKS Senior Debt,
the administrative fees and expenses of the PEAKS Trust and a minimum required ratio of assets of the PEAKS Trust to outstanding PEAKS Senior Debt (the Asset/Liability Ratio). Our guarantee obligations under the PEAKS Program remain in
effect until the PEAKS Senior Debt and the PEAKS Trusts fees and expenses are paid in full. At such time, we will be entitled to repayment of the amounts that we paid under the PEAKS Guarantee, to the extent of available funds remaining in the
PEAKS Trust. See Note 11 Commitments and Contingencies, for a further discussion of our obligations to make guarantee payments pursuant to the PEAKS Guarantee. The following table sets forth the PEAKS Guarantee payments that were made in the
periods indicated:
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
March 31,
|
|
|
|
2016
|
|
|
2015
|
|
PEAKS Guarantee
|
|
$
|
4,534
|
|
|
$
|
13,637
|
|
13
CUSO Program.
On February 20, 2009, we entered into agreements with the CUSO
to create the CUSO Program. Under the CUSO Program, an unrelated lender originated private education loans to our eligible students and, subsequently, sold those loans to the CUSO. The CUSO purchased the private education loans from the lender
utilizing funds received from its owners in exchange for participation interests in the private education loans acquired by the CUSO. The lender disbursed the proceeds of the private education loans to us for application to the students
account balances with us that represented their unpaid education costs. No new private education loans were or will be originated under the CUSO Program after December 31, 2011, but immaterial amounts related to loans originated prior to that
date were disbursed by the lender through June 2012.
Assets and Liabilities of the CUSO
. We concluded that we became the
primary beneficiary of the CUSO on September 30, 2014 and, therefore, were required to consolidate the CUSO in our consolidated financial statements (the CUSO Consolidation). In accordance with ASC 810, the consolidation of the CUSO
was treated as an acquisition of assets and liabilities and, therefore, the assets and liabilities of the CUSO were included in our consolidated financial statements at their fair value as of September 30, 2014.
We recorded the CUSO Secured Borrowing Obligation at the time of the CUSO Consolidation. The CUSO Secured Borrowing Obligation represents the
estimated amount that the CUSO owes to the CUSO Participants related to their participation interests in the CUSO Student Loans, which amount is expected to be paid to the CUSO Participants by the CUSO from payments received by the CUSO related to
the CUSO Student Loans, whether from the borrower or from us under the CUSO RSA.
In accordance with ASC 810, we included the CUSO Secured
Borrowing Obligation on our Condensed Consolidated Balance Sheets at its fair value as of September 30, 2014, the date of the CUSO Consolidation. The difference between the estimated fair value of the CUSO Secured Borrowing Obligation and the
amount expected to be paid by the CUSO to the CUSO Participants was recorded as an accrued discount on our Condensed Consolidated Balance Sheets at the date of the CUSO Consolidation. The accrued discount is being recognized in interest expense
using the interest method based on the actual and projected cash flows, over the expected life of the CUSO Secured Borrowing Obligation.
The expected life of the CUSO Secured Borrowing Obligation is an estimate of the period of time over which payments are expected to be made by
the CUSO to the CUSO Participants related to their participation interests in the CUSO Student Loans. The period of time over which payments are expected to be made by the CUSO to the CUSO Participants is based upon when the CUSO Student Loans enter
a repayment status and the period of time they remain in a repayment status. Since all of the CUSO Student Loans have not entered repayment, and those loans that have entered a repayment status may be granted forbearances or deferments, the period
of time over which payments are expected to be made to the CUSO Participants is an estimate. The assumptions used to estimate the expected life of the CUSO Secured Borrowing Obligation are reviewed periodically and updated accordingly, which may
result in an adjustment to the expected life of the CUSO Secured Borrowing Obligation and the related recognized interest expense.
The
following table sets forth the carrying values of assets and liabilities of the CUSO that were included on our Condensed Consolidated Balance Sheets as of the dates indicated:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of
|
|
|
|
March 31,
2016
|
|
|
December 31,
2015
|
|
|
March 31,
2015
|
|
Assets
|
|
|
|
|
|
|
|
|
|
|
|
|
Restricted cash
|
|
$
|
3,244
|
|
|
$
|
3,968
|
|
|
$
|
2,790
|
|
Current portion of CUSO Student Loans
|
|
|
4,251
|
|
|
|
2,734
|
|
|
|
3,066
|
|
CUSO Student Loans, excluding current portion, less allowance for loan losses of $2,412, $1,796
and $2,480
|
|
|
12,716
|
|
|
|
16,174
|
|
|
|
18,932
|
|
Other assets
|
|
|
285
|
|
|
|
257
|
|
|
|
202
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets
|
|
$
|
20,496
|
|
|
$
|
23,133
|
|
|
$
|
24,990
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liabilities
|
|
|
|
|
|
|
|
|
|
|
|
|
Current portion of CUSO Secured Borrowing Obligation
|
|
$
|
18,065
|
|
|
$
|
23,591
|
|
|
$
|
20,963
|
|
Other current liabilities
|
|
|
153
|
|
|
|
154
|
|
|
|
182
|
|
CUSO Secured Borrowing Obligation, excluding current portion
|
|
|
89,695
|
|
|
|
91,728
|
|
|
|
98,002
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities
|
|
$
|
107,913
|
|
|
$
|
115,473
|
|
|
$
|
119,147
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The assets of the CUSO can only be used to satisfy the obligations of the CUSO. Other liabilities of the CUSO of $1,776 that
were reported as of March 31, 2015 have been reclassified and included in the line item CUSO secured borrowing obligation, excluding current portion, to conform with the current year presentation.
14
Revenue and Expenses of the CUSO
. The following table sets forth the revenue and
expenses of the CUSO, which were included in our Condensed Consolidated Statements of Operations for the periods indicated:
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
March 31,
|
|
|
|
2016
|
|
|
2015
|
|
Revenue
|
|
$
|
1,082
|
|
|
$
|
1,064
|
|
Student services and administrative expenses
|
|
|
360
|
|
|
|
396
|
|
Provision for private education loan losses
|
|
|
395
|
|
|
|
441
|
|
Interest expense
|
|
|
3,167
|
|
|
|
3,641
|
|
|
|
|
|
|
|
|
|
|
(Loss) before provision for income taxes
|
|
$
|
(2,840
|
)
|
|
$
|
(3,414
|
)
|
|
|
|
|
|
|
|
|
|
The revenue of the CUSO consists of interest income on the CUSO Student Loans, which is the accretion of the
accretable yield on the CUSO Student Loans, and an administrative fee paid by the CUSO Participants to the CUSO on a monthly basis. The servicing, administrative and other fees incurred by the CUSO are included in Student services and administrative
expenses in our Condensed Consolidated Statements of Operations. The provision for private education loan losses represents the increase in the allowance for loan losses that occurred during the period, offset by recoveries received from private
education loans that were charged off prior to the CUSO consolidation. The allowance for loan losses represents the difference between the carrying value and the total present value of the expected principal and interest collections of each loan
pool of the CUSO Student Loans, discounted by the loan pools effective interest rate as of the end of the reporting period. Interest expense of the CUSO represents interest expense on the CUSO Secured Borrowing Obligation, which includes the
contractual interest obligation on the CUSO Student Loans and the accretion of the discount on the CUSO Secured Borrowing Obligation.
CUSO RSA
. In connection with the CUSO Program, we entered into the CUSO RSA with the CUSO. Under the CUSO RSA, we guarantee the
repayment of any private education loans that are charged off above a certain percentage of the private education loans made under the CUSO Program, based on the annual dollar volume. Under the CUSO RSA, we have an obligation to make the monthly
payments due and unpaid on those private education loans that have been charged off above a certain percentage (Regular Payments). Instead of making Regular Payments, however, we may elect to discharge our obligations to make Regular
Payments on specified charged-off private education loans by:
|
|
|
paying the then outstanding balance (plus accrued and unpaid interest) of those private education loans that have been charged off above a certain percentage and, with respect to which, an amount equal to at least ten
monthly payments has been paid; or
|
|
|
|
paying the then outstanding balance (plus accrued and unpaid interest) of those private education loans that have been charged off above a certain percentage and, with respect to which, an amount equal to at least ten
monthly payments has not been paid, plus any interest that would otherwise have been payable until ten monthly payments had been made, discounted at the rate of 10% per annum
|
(collectively, Discharge Payments). See Note 11 Commitments and Contingencies, for a further discussion of our obligations to make
guarantee payments pursuant to the CUSO RSA.
Pursuant to the CUSO RSA, we are entitled to all amounts that the CUSO recovers from loans
in a particular loan pool made under the CUSO Program that have been charged off, until all payments that we made under the CUSO RSA with respect to that loan pool have been repaid to us by the CUSO. We have the right to offset payment amounts that
we owe under the CUSO RSA by the amount of recoveries from charged-off loans made under the CUSO Program that are owed, but have not been paid, to us. We exercised this offset right in the three months ended March 31, 2016 and 2015.
In June 2015, we entered into an amendment to the CUSO RSA that, among other things, allowed us to defer the payments due in June 2015 through
December 2015 under the CUSO RSA to January 2016 (the Deferred Payment). See Note 11 Commitments and Contingencies for a discussion of this amendment. In accordance with the provisions of this amendment, we deferred the payments
due in June 2015 through December 2015 under the CUSO RSA, and we utilized the amount of the recoveries of charged-off loans received by the CUSO between June 2015 and December 2015 that were due but were not paid to us to offset against amounts
that we owed under the CUSO RSA in January 2016.
The following table sets forth the payments that we made to the CUSO related to our
guarantee obligations under the CUSO RSA in the periods indicated:
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
March 31,
|
|
|
|
2016
|
|
|
2015
|
|
Regular Payments
|
|
$
|
2,597
|
(1)
|
|
$
|
2,280
|
(2)
|
Deferred Payment
|
|
|
5,331
|
(3)
|
|
|
0
|
|
Discharge Payments
|
|
|
0
|
|
|
|
2,709
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
7,928
|
|
|
$
|
4,989
|
|
|
|
|
|
|
|
|
|
|
15
(1)
|
This amount is net of $294 of recoveries from charged-off loans owed to us that we offset against amounts we owed under the CUSO RSA.
|
(2)
|
This amount is net of $290 of recoveries from charged-off loans owed to us that we offset against amounts we owed under the CUSO RSA.
|
(3)
|
This amount is net of $761 of recoveries from charged-off loans received by the CUSO from June 8, 2015 through December 31, 2015 that were not paid to us that we offset against amounts owed by us under the
CUSO RSA in January 2016.
|
We made advances to the CUSO under the Revolving Note in years prior to 2012. We made the
advances so that the CUSO could use those funds primarily to purchase additional private education loans made under the CUSO Program. The period of time during which we could make additional advances under the Revolving Note ended on January 1,
2014. Certain of the assets of the CUSO serve as collateral for the Revolving Note. The Revolving Note bears interest, is subject to customary terms and conditions and is currently due and payable in full. In 2013, we also offset $8,472 owed by us
under the CUSO RSA against amounts owed to us by the CUSO under the Revolving Note, instead of making additional payments in that amount. We did not offset any amounts owed by us under the CUSO RSA against amounts owed to us by the CUSO under the
Revolving Note, instead of making additional payments in those amounts, in the three months ended March 31, 2016 or 2015.
See Note
11 Commitments and Contingencies, for a further discussion of the offsets and CUSO RSA.
The amount owed to us under the Revolving
Note, excluding those offsets, was approximately $8,300 as of March 31, 2016 and December 31, 2015, and $8,200 as of March 31, 2015. The amount of the Revolving Note was eliminated from our financial statements as a result of the CUSO
Consolidation.
6.
|
Private Education Loans
|
We concluded that we were required to consolidate the PEAKS Trust in our consolidated financial statements beginning on
February 28, 2013 and to consolidate the CUSO in our consolidated financial statements beginning on September 30, 2014. See Note 5 Variable Interest Entities, for a further discussion of the consolidation of the PEAKS Trust and CUSO
(the Consolidated VIEs). As a result, the assets and liabilities of the Consolidated VIEs were included on our Condensed Consolidated Balance Sheets as of March 31, 2016, December 31, 2015 and March 31, 2015.
The aggregate carrying amount of the Private Education Loans included under the Private education loan line items on our Condensed
Consolidated Balance Sheets as of March 31, 2016 was $64,699 and as of March 31, 2015 was $86,069. The outstanding principal balance of the Private Education Loans, including accrued interest, was approximately $100,978 as of
March 31, 2016 and $161,436 as of March 31, 2015.
Initial Measurement
.
A significant number of the Private
Education Loans were determined to be credit impaired upon consolidation. Loans determined to be credit impaired upon consolidation or acquisition (Purchased Credit Impaired Loans or PCI Loans), are initially measured at fair
value in accordance with ASC 310-30, Receivables Loans and Debt Securities Acquired with Deteriorated Credit Quality (ASC 310-30). A loan is considered a PCI Loan if it has evidence of deteriorated credit quality
following the loans origination date. As a result, at the date of consolidation or acquisition, it is probable that all contractually required payments under a PCI Loan will not be collected.
The Private Education Loans that did not individually have evidence of deteriorated credit quality at the time of consolidation were also
initially measured at fair value and are accounted for in accordance with ASC 310-30. We believe that following the guidance of ASC 310-30 by analogy with respect to those loans provides the most reasonable presentation of the value of those loans,
primarily due to:
|
|
|
the evidence of deteriorated credit quality of a significant number of the Private Education Loans; and
|
|
|
|
the probability that all contractually required payments with respect to those loans will not be collected.
|
All of the Private Education Loans are, therefore, considered to be, and reported as, PCI Loans.
This accounting treatment is consistent with the American Institute of Certified Public Accountants (the AICPA)
December 18, 2009 confirmation letter (the Confirmation Letter), in which the AICPA summarized the SEC staffs view regarding the accounting in subsequent periods for discount accretion associated with loan receivables acquired
in a business combination or asset purchase. In this letter, the AICPA states that it understands that the SEC staff will not object to an accounting policy based on contractual or expected cash flow. We believe that following ASC 310-30 by analogy
with respect to the Private Education Loans that did not individually have evidence of deteriorated credit quality at the time of consolidation is an appropriate application of the accounting guidance to determine the initial measurement of the
value of those loans.
Aggregation of Loans
.
PCI Loans recognized upon consolidation or acquisition in the same fiscal
quarter may be aggregated into one or more pools, provided that the PCI Loans in each pool have common risk characteristics. The Private Education Loans were considered to be PCI Loans upon consolidation. As of the date of the PEAKS Consolidation or
the CUSO Consolidation, as applicable, we aggregated the PEAKS Trust Student Loans into 24 separate pools of loans and the CUSO Student Loans into 48 separate pools of loans, based on common risk characteristics of the loans, which included:
|
|
|
the fiscal quarter in which the Private Education Loan was purchased by the PEAKS Trust or the CUSO; and
|
|
|
|
the consumer credit score of the borrower.
|
16
PCI Loans that do not have evidence of deteriorated credit quality are not aggregated in the same
pools with PCI Loans that have evidence of deteriorated credit quality. The same aggregation criteria, however, were used to determine those loan pools. Each loan pool is accounted for as a single asset with a single composite interest rate and an
aggregate expectation of cash flows.
Accretable Yield
.
The Private Education Loans were recorded at their estimated fair
value upon consolidation. The estimated fair value of the PEAKS Trust Student Loans as of February 28, 2013, and the CUSO Student Loans as of September 30, 2014, was determined using an expected cash flow methodology. Projected default
rates and forbearances were considered in applying the estimated cash flow methodology. Prepayments of loans were not considered when estimating the expected cash flows, because, historically, few Private Education Loans have been prepaid. No
allowance for loan loss was established as of the date of consolidation of the PEAKS Trust and the CUSO, because all of the Private Education Loans were recorded at fair value and future credit losses are considered in the estimate of fair value.
The excess of any cash flows expected to be collected with respect to a loan pool of the Private Education Loans over the carrying value
of the loan pool is referred to as the accretable yield. The accretable yield is not reported on our Condensed Consolidated Balance Sheets, but it is accreted and included as interest income using the effective interest method, which is at a level
rate of return over the remaining estimated life of the loan pool.
The following table sets forth information regarding aggregate changes
in accretable yield of the loan pools of the PEAKS Trust Student Loans, in total, and for those loans pursuant to which ASC 310-30 was applied by analogy, for the periods indicated:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
March 31, 2016
|
|
|
Three Months Ended
March 31, 2015
|
|
|
|
Total
|
|
|
ASC 310-30
Applied By
Analogy
|
|
|
Total
|
|
|
ASC 310-30
Applied By
Analogy
|
|
Balance at beginning of period
|
|
$
|
34,984
|
|
|
$
|
19,313
|
|
|
$
|
51,819
|
|
|
$
|
32,654
|
|
Accretion
|
|
|
(2,002
|
)
|
|
|
(1,022
|
)
|
|
|
(2,413
|
)
|
|
|
(1,431
|
)
|
Reclassification from nonaccretable difference and changes in expected cash flows
|
|
|
(1,330
|
)
|
|
|
(933
|
)
|
|
|
(1,508
|
)
|
|
|
(2,541
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at end of period
|
|
$
|
31,652
|
|
|
$
|
17,358
|
|
|
$
|
47,898
|
|
|
$
|
28,682
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The following table sets forth information regarding aggregate changes in accretable yield of the loan pools
of the CUSO Student Loans, in total, and for those loans pursuant to which ASC 310-30 was applied by analogy, for the periods indicated:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
March 31, 2016
|
|
|
Three Months Ended
March 31, 2015
|
|
|
|
Total
|
|
|
ASC 310-30
Applied By
Analogy
|
|
|
Total
|
|
|
ASC 310-30
Applied By
Analogy
|
|
Balance at beginning of period
|
|
$
|
12,793
|
|
|
$
|
7,611
|
|
|
$
|
11,728
|
|
|
$
|
5,857
|
|
Accretion
|
|
|
(722
|
)
|
|
|
(432
|
)
|
|
|
(668
|
)
|
|
|
(346
|
)
|
Reclassification from nonaccretable difference and changes in expected cash flows
|
|
|
(425
|
)
|
|
|
(294
|
)
|
|
|
60
|
|
|
|
266
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at end of period
|
|
$
|
11,646
|
|
|
$
|
6,885
|
|
|
$
|
11,120
|
|
|
$
|
5,777
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Allowance for Private Education Loan Losses
.
On a quarterly basis, subsequent to the PEAKS
Consolidation and the CUSO Consolidation, as applicable, we estimate the principal and interest expected to be collected over the remaining life of each loan pool. These estimates include assumptions regarding default rates, forbearances and other
factors that reflect then-current market conditions. Prepayments of loans were not considered when estimating the expected cash flows, because, historically, few Private Education Loans have been prepaid.
If a decrease in the expected cash flows of a loan pool is probable and would cause the expected cash flows to be less than the expected cash
flows at the end of the previous fiscal quarter, we would record the impairment as:
|
|
|
a provision for private education loan losses in our Condensed Consolidated Statement of Operations; and
|
|
|
|
an increase in the allowance for loan losses on our Condensed Consolidated Balance Sheets.
|
The provision for
private education loan losses represents the increase in the allowance for loan losses that occurred during the period. The allowance for loan losses is the difference between the carrying value and the total present value of the expected principal
and interest collections of each loan pool, discounted by the loan pools effective interest rate at the end of the previous fiscal quarter. If a significant increase in the expected cash flows of a loan pool is probable and would cause the
expected cash flows to be greater than the expected cash flows at the end of the previous fiscal quarter, we would:
|
|
|
first reverse any allowance for loan losses with respect to that loan pool that was previously recorded on our Condensed Consolidated Balance Sheets, up to the amount of that allowance; and
|
|
|
|
record any remaining increase prospectively as a yield adjustment over the remaining estimated lives of the loans in the loan pool.
|
17
The following table sets forth information regarding changes in the allowance for loan losses of
the loan pools of the PEAKS Trust Student Loans in the aggregate in the periods indicated:
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
March 31,
|
|
|
|
2016
|
|
|
2015
|
|
Balance at beginning of period
|
|
$
|
21,816
|
|
|
$
|
42,353
|
|
Loans charged off
|
|
|
(6,907
|
)
|
|
|
(4,061
|
)
|
Recoveries from charged off loans
|
|
|
730
|
|
|
|
501
|
|
Provision for loan losses
|
|
|
1,483
|
|
|
|
803
|
|
|
|
|
|
|
|
|
|
|
Balance at end of period
|
|
$
|
17,122
|
|
|
$
|
39,596
|
|
|
|
|
|
|
|
|
|
|
The following table sets forth information regarding changes in the allowance for loan losses of the loan
pools of the CUSO Student Loans in the aggregate in the periods indicated:
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
March 31,
|
|
|
|
2016
|
|
|
2015
|
|
Balance at beginning of period
|
|
$
|
1,796
|
|
|
$
|
2,039
|
|
Loans charged off
|
|
|
0
|
|
|
|
0
|
|
Recoveries from charged off loans
|
|
|
0
|
|
|
|
0
|
|
Provision for loan losses
|
|
|
616
|
(1)
|
|
|
441
|
|
|
|
|
|
|
|
|
|
|
Balance at end of period
|
|
$
|
2,412
|
|
|
$
|
2,480
|
|
|
|
|
|
|
|
|
|
|
(1)
|
The provision for loan losses was reduced by $221 for recoveries from CUSO Student Loans that were not recognized on our consolidated balance sheet at the time of the CUSO Consolidation.
|
Adjustments to the interest income of a loan pool are recognized prospectively, if those adjustments are due to:
|
|
|
changes in variable interest rates; or
|
|
|
|
any other changes in the timing of the expected cash flows of the loan pools.
|
Loan
Modifications and Charge Offs
.
Modifications were made to PCI Loans in the three months ended March 31, 2016 and 2015 and were primarily due to forbearances granted with respect to the payment of those loans. We consider the impact of
any modifications made to PCI Loans as part of our quarterly assessment of whether:
|
|
|
a probable and significant change in the expected cash flows of the PCI Loans has occurred; and
|
|
|
|
the loans should continue to be accounted for and reported as PCI loans.
|
In evaluating the impact of
modifications made to PCI Loans on the expected cash flows of those loans, we consider the effect of any foregone interest and the potential for future default. These default estimates are used to calculate expected credit losses with respect to
each loan pool. In developing these probabilities of default estimates, we considered the relationship between the credit quality characteristics of the loans in the loan pool and certain assumptions based on the performance history of the Private
Education Loans and industry data related to the severity and recovery lag of defaults applicable to private education loans.
The charge
off of a PCI Loan results in the removal of that loan from the underlying PCI Loan pool and reduces the loan pool discount. If the discount for principal losses for a particular PCI Loan pool has been fully depleted, the charge off of a PCI Loan
will reduce the PCI Loan pools allowance for loan losses. Removal of a PCI Loan from the underlying PCI Loan Pool does not change the effective yield of the PCI Loan Pool.
7.
|
Goodwill and Intangibles
|
We recognized goodwill and certain other intangible assets on our consolidated balance sheet as a result of the acquisition
of:
|
|
|
certain assets and liabilities of CompetenC Solutions, Inc. and Great Equalizer, Inc. on January 31, 2014;
|
|
|
|
the membership interests of Cable Holdings, LLC on August 1, 2013; and
|
|
|
|
substantially all the assets and certain liabilities of Daniel Webster College on June 10, 2009.
|
The
acquired intangible assets consist of certain identifiable intangible assets that are amortized over the assets estimated life, and indefinite-lived intangible assets, including goodwill. Goodwill represents the excess of the consideration
paid over the estimated fair value of identifiable net assets acquired.
18
The following tables set forth the carrying value of our acquired intangible assets that were
included in Other assets on our Condensed Consolidated Balance Sheets as of the dates indicated:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of March 31, 2016
|
|
|
|
Gross
Carrying
Value
|
|
|
Accumulated
Amortization
|
|
|
Net
Carrying
Value
|
|
|
Weighted Average
Amortization
Period (months)
|
|
Amortizable intangible assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Customer relationships
|
|
$
|
2,500
|
|
|
$
|
(1,203
|
)
|
|
$
|
1,297
|
|
|
|
60
|
|
Non-compete agreements
|
|
|
1,120
|
|
|
|
(560
|
)
|
|
|
560
|
|
|
|
60
|
|
Training materials
|
|
|
440
|
|
|
|
(335
|
)
|
|
|
105
|
|
|
|
42
|
|
Accreditation
|
|
|
210
|
|
|
|
(203
|
)
|
|
|
7
|
|
|
|
84
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
4,270
|
|
|
$
|
(2,301
|
)
|
|
$
|
1,969
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of December 31, 2015
|
|
|
|
Gross
Carrying
Value
|
|
|
Accumulated
Amortization
|
|
|
Net
Carrying
Value
|
|
|
Weighted Average
Amortization
Period (months)
|
|
Amortizable intangible assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Customer relationships
|
|
$
|
2,500
|
|
|
$
|
(1,078
|
)
|
|
$
|
1,422
|
|
|
|
60
|
|
Non-compete agreements
|
|
|
1,120
|
|
|
|
(504
|
)
|
|
|
616
|
|
|
|
60
|
|
Training materials
|
|
|
440
|
|
|
|
(304
|
)
|
|
|
136
|
|
|
|
42
|
|
Accreditation
|
|
|
210
|
|
|
|
(195
|
)
|
|
|
15
|
|
|
|
84
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
4,270
|
|
|
$
|
(2,081
|
)
|
|
$
|
2,189
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of March 31, 2015
|
|
|
|
Gross
Carrying
Value
|
|
|
Accumulated
Amortization
|
|
|
Net
Carrying
Value
|
|
|
Weighted Average
Amortization
Period (months)
|
|
Amortizable intangible assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Customer relationships
|
|
$
|
2,500
|
|
|
$
|
(703
|
)
|
|
$
|
1,797
|
|
|
|
60
|
|
Non-compete agreements
|
|
|
1,120
|
|
|
|
(336
|
)
|
|
|
784
|
|
|
|
60
|
|
Training materials
|
|
|
440
|
|
|
|
(210
|
)
|
|
|
230
|
|
|
|
42
|
|
Accreditation
|
|
|
210
|
|
|
|
(173
|
)
|
|
|
37
|
|
|
|
84
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
4,270
|
|
|
$
|
(1,422
|
)
|
|
$
|
2,848
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
All amortizable intangible assets are being amortized on a straight-line basis. Amortization expense for
amortized intangible assets was:
|
|
|
$220 in the three months ended March 31, 2016; and
|
|
|
|
$221 in the three months ended March 31, 2015.
|
The following table sets forth our
estimate of the amortization expense for our amortizable intangible assets in each of the four years, 2016 through 2019:
|
|
|
|
|
Fiscal Year Ending December 31,
|
|
Estimated
Amortization
Expense
|
|
2016
|
|
$
|
865
|
|
2017
|
|
|
734
|
|
2018
|
|
|
562
|
|
2019
|
|
|
28
|
|
|
|
|
|
|
|
|
$
|
2,189
|
|
|
|
|
|
|
19
The following tables set forth the carrying value of our indefinite-lived intangible assets that
were included in Other assets on our Condensed Consolidated Balance Sheets as of the dates indicated.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of March 31, 2016
|
|
|
|
Gross Carrying
Value
|
|
|
Accumulated
Impairment
Loss
|
|
|
Net Carrying
Value
|
|
Indefinite-lived intangible assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
Goodwill
|
|
$
|
7,247
|
|
|
$
|
(7,247
|
)
|
|
$
|
0
|
|
Trademark
|
|
|
660
|
|
|
|
(410
|
)
|
|
|
250
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
7,907
|
|
|
$
|
(7,657
|
)
|
|
$
|
250
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of December 31, 2015
|
|
|
|
Gross Carrying
Value
|
|
|
Accumulated
Impairment
Loss
|
|
|
Net Carrying
Value
|
|
Indefinite-lived intangible assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
Goodwill
|
|
$
|
7,247
|
|
|
$
|
(7,247
|
)
|
|
$
|
0
|
|
Trademark
|
|
|
660
|
|
|
|
(410
|
)
|
|
|
250
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
7,907
|
|
|
$
|
(7,657
|
)
|
|
$
|
250
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of March 31, 2015
|
|
|
|
Gross Carrying
Value
|
|
|
Accumulated
Impairment
Loss
|
|
|
Net Carrying
Value
|
|
Indefinite-lived intangible assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
Goodwill
|
|
$
|
7,290
|
|
|
$
|
(2,044
|
)
|
|
$
|
5,246
|
|
Trademark
|
|
|
660
|
|
|
|
(410
|
)
|
|
|
250
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
7,950
|
|
|
$
|
(2,454
|
)
|
|
$
|
5,496
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Indefinite-lived intangible assets include trademarks and goodwill, which are not amortized, since there are
no legal, regulatory, contractual, economic or other factors that limit the useful life of those intangible assets by us.
Intangible
assets that are not subject to amortization are required to be tested for impairment annually or more frequently if events or changes in circumstances indicate that the asset may be impaired. We perform our impairment evaluation annually, during the
fourth quarter, or more frequently if facts and circumstances warrant. All of our goodwill relates to one reporting unit, which is defined as one level below an operating segment.
In addition to our annual impairment test, we consider certain triggering events when evaluating whether an interim impairment analysis is
warranted. Among these is a significant long-term decrease in our market capitalization based on events specific to our operations. Deteriorating operating results and current period and projected future operating results that negatively differ from
the operating plans used in the most recent impairment analysis are also triggering events that could be cause for an interim impairment review. In our analysis of triggering events we also consider changes in the accreditation, regulatory or legal
environment; increased competition; innovation changes and changes in the market acceptance of our educational programs and the graduates of those programs, among other factors. We concluded that no triggering event had occurred during the three
month period ended March 31, 2016 or March 31, 2015.
The assumptions and estimates underlying the fair value calculations used
in our annual impairment test are uncertain by their nature and can vary significantly from actual results. Therefore, as circumstances and assumptions change, we may be required to recognize additional impairment charges for indefinite-lived
intangible assets in future periods.
As of March 31, 2016, our Condensed Consolidated Balance Sheet included: (i) outstanding Term Loan (as defined
below) borrowings under the Financing Agreement, as described further below under
Term Loans,
(ii) the PEAKS Senior Debt issued by the PEAKS Trust, which was consolidated in our consolidated financial statements
beginning February 28, 2013, as described further below under
PEAKS Trust Senior Debt,
and (iii) the CUSO Secured Borrowing Obligation of the CUSO, which was consolidated in our consolidated financial statements
beginning September 30, 2014, as described further in Note 5 Variable Interest Entities.
Term Loans.
On
December 4, 2014, we and certain of our subsidiaries entered into a financing agreement (the Original Financing Agreement) with Cerberus Business Finance, LLC (Cerberus), as administrative agent and collateral agent, and
the lenders party thereto. Under the Original Financing Agreement, we borrowed $100,000 aggregate principal amount of senior secured term loans (the Term Loans).
20
On December 23, 2014, we entered into Amendment No. 1 to Financing Agreement
(Amendment No. 1), on March 17, 2015, we entered into Amendment No. 2 to Financing Agreement (Amendment No. 2), on May 26, 2015, we entered into a Limited Consent to Financing Agreement (the FA
Consent), on September 18, 2015, we entered into Amendment No. 3 to Financing Agreement (Amendment No. 3), on December 31, 2015, we entered into Amendment No. 4 to Financing Agreement (Amendment
No. 4) and on March 10, 2016, we entered into a Limited Waiver (Waiver). The Original Financing Agreement, as amended by Amendment No. 1, Amendment No. 2, Amendment No. 3, Amendment No. 4 and
including the FA Consent and Waiver, is referred to herein as the Financing Agreement.
Pursuant to the Waiver we entered into
on March 10, 2016, the agents and the lenders under the Financing Agreement agreed to waive any default or event of default that may have occurred and is continuing, or may occur, under the Financing Agreement or related loan documents as a
result of the restatement of our condensed consolidated financial statements for each of the fiscal quarters ended March 31, 2014, June 30, 2014, September 30, 2014, March 31, 2015, June 30, 2015 and
September 30, 2015, and our consolidated financial statements for the fiscal year ended December 31, 2014 (the Restatements), as long as we delivered to the agents and lenders our restated financial statements by March 31,
2016. We delivered our restated financial statements to the agents and lenders by March 31, 2016.
A portion of the proceeds of the
Term Loans, as well as other funds, were used for payment of fees in connection with the Financing Agreement. We paid a one-time commitment fee of $3,000 in the fourth quarter of 2014 in connection with the Financing Agreement. The commitment fee
and other costs paid to, or on behalf of, the lender were recorded as debt discount on our Consolidated Balance Sheets.
The following
table sets forth the outstanding principal balance, debt issuance costs, debt discount and carrying value of the Financing Agreement as of the dates indicated:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of
|
|
|
|
March 31,
2016
|
|
|
December 31,
2015
|
|
|
March 31,
2015
|
|
Outstanding principal balance
|
|
$
|
50,505
|
|
|
$
|
69,681
|
|
|
$
|
97,500
|
|
Debt issuance costs
|
|
|
(209
|
)
|
|
|
(360
|
)
|
|
|
(1,011
|
)
|
Debt discount
|
|
|
(673
|
)
|
|
|
(1,160
|
)
|
|
|
(3,260
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Carrying value
|
|
$
|
49,623
|
|
|
$
|
68,161
|
|
|
$
|
93,229
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The outstanding principal balance under the Financing Agreement is expected to be repaid by us as set forth in
the following table:
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal Quarter Ending
|
|
Scheduled
Payments
|
|
|
Excess
Cash Flow
Payment
|
|
|
Total
|
|
June 30, 2016
|
|
$
|
15,500
|
|
|
$
|
0
|
|
|
$
|
15,500
|
|
September 30, 2016
|
|
|
15,500
|
|
|
|
0
|
|
|
|
15,500
|
|
December 31, 2016
|
|
|
19,505
|
|
|
|
0
|
|
|
|
19,505
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
50,505
|
|
|
$
|
0
|
|
|
$
|
50,505
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The Financing Agreement provides for mandatory prepayment of outstanding principal in an amount equal to 50%
of Excess Cash Flow (as defined in the Financing Agreement) calculated based on our cash flows for the fiscal years ended December 31, 2015 and 2016 or, in the case of 2015, at least $9,000. Any mandatory prepayment amounts due under this
provision are payable within 90 days of December 31. Because our Excess Cash Flow for the fiscal year ended December 31, 2015 was less than the minimum required payment pursuant to the Financing Agreement, we made a mandatory prepayment of
$9,000 under the Excess Cash Flow provision in March 2016. The Term Loans will mature on December 4, 2017. Assuming the required principal payments are made in accordance with the repayment schedule for the remainder of 2016, however, the
outstanding balance of the Term Loans is expected to be $0 as of December 31, 2016. Based on these repayment expectations, we have classified the entire carrying value of the Term Loans as a current liability on our March 31, 2016
Condensed Consolidated Balance Sheet.
The Financing Agreement provides that we must pay a premium on any prepayment of outstanding
principal (Premium Payment) that we make during the first two years of the Financing Agreement that is not specifically required under the mandatory prepayment provision. We did not make any Premium Payments in 2015. The Premium Payment
for any such prepayment of principal is 1.0% of the amount of any prepayment we make from December 5, 2015 through December 4, 2016. We do not expect to make any Premium Payments in 2016.
The Term Loans bear interest, at our option, at:
|
|
|
the higher of (a) the London Interbank Offered Rate (LIBOR) and (b) 1.00%, plus a margin of 8.50%; or
|
|
|
|
the highest of (a) 2.00%, (b) the federal funds rate plus 0.50%, (c) LIBOR plus 1.00% and (d) the U.S. Prime Rate, plus a margin of 8.00%.
|
The effective interest rate on our borrowings under the Financing Agreement was approximately:
|
|
|
14.20% per annum in the three months ended March 31, 2016; and
|
|
|
|
12.70% per annum in the three months ended March 31, 2015.
|
21
The following table sets forth the total amount of interest expense and fees (including
amortization of debt issuance costs and accretion of debt discount) that we recognized on our borrowings under the Financing Agreement in the periods indicated:
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
March 31,
|
|
|
|
2016
|
|
|
2015
|
|
Interest expense and fees
|
|
$
|
2,174
|
|
|
$
|
3,367
|
|
The Term Loans are guaranteed by certain of our subsidiaries (the Guarantors and together with us,
the Loan Parties) and are secured, subject to certain agreed upon exceptions, by: (i) a first-priority lien on and perfected security interest in substantially all the Loan Parties assets, including a pledge of the equity of
the Guarantors and our other subsidiaries, (ii) a mortgage on the Loan Parties owned real estate, and (iii) control agreements on certain of the Loan Parties deposit accounts.
The Financing Agreement contains certain affirmative and negative covenants, including restrictions on the Loan Parties ability to incur
debt and liens, make investments, dispose of assets, pay dividends and make prepayments on existing indebtedness, in each case subject to customary exceptions.
The Financing Agreement requires us to maintain compliance with a Leverage Ratio (as defined in the Financing Agreement) and a Fixed Charge
Coverage Ratio (as defined in the Financing Agreement), as well as with certain educational regulatory measurements. Compliance with the Leverage Ratio and the Fixed Charge Coverage Ratio is determined on a quarterly basis, covering certain
prior periods as described in the Financing Agreement.
The educational regulatory measurements are calculated over different time
periods, based on statutory guidelines. The educational regulatory measurements are set forth in the Financing Agreement, and include the following tests:
|
|
|
a minimum composite score of our equity, primary reserve and net income ratios;
|
|
|
|
our institutions loan cohort default rates under the programs under Title IV (Title IV Programs) of the Higher Education Act of 1965, as amended (HEA);
|
|
|
|
our institutions compliance with the 90/10 Rule of the HEA;
|
|
|
|
our compliance with the EDs gainful employment regulations; and
|
|
|
|
our institutions student retention rate.
|
The Financing Agreement contains certain
events of default, including:
|
|
|
the failure by us to pay any amount owed under the Financing Agreement when due;
|
|
|
|
an inaccuracy in any material respect of the representations or warranties that the Loan Parties made in the Financing Agreement;
|
|
|
|
a violation of any covenant that the Loan Parties made in the Financing Agreement and the related loan documents;
|
|
|
|
a default by us under any other material indebtedness owed by us, including, without limitation, our failure to pay any amounts due under the PEAKS Guarantee or the CUSO RSA;
|
|
|
|
a change of control of us;
|
|
|
|
the invalidity of certain liens or guarantees granted or made by the Loan Parties in the Financing Agreement;
|
|
|
|
the occurrence of certain regulatory events; and
|
|
|
|
certain bankruptcy or insolvency events affecting the Loan Parties.
|
If an event of default
occurs under the Financing Agreement, the lenders may declare all Term Loans then outstanding to be immediately due and payable in full.
PEAKS Senior Debt
.
In January 2010, the PEAKS Trust issued the PEAKS Senior Debt in the aggregate principal amount of
$300,000 to investors. Beginning on February 28, 2013, the PEAKS Trust was consolidated in our consolidated financial statements. See Note 5 Variable Interest Entities, for a further discussion of the PEAKS Consolidation. The PEAKS Senior
Debt was recorded on our consolidated balance sheet as of February 28, 2013 at its estimated fair value on that date, which was approximately $226,096. The outstanding principal balance of the PEAKS Senior Debt as of February 28, 2013 was
$257,533. The $31,437 difference between the estimated fair value and the outstanding principal balance of the PEAKS Senior Debt as of February 28, 2013 was recorded as a debt discount on our consolidated balance sheet and is being recognized
as Interest expense in our consolidated statements of operations using the interest method, based on the actual and projected cash flows, over the expected life of the PEAKS Senior Debt.
22
The following table sets forth the outstanding principal balance, debt discount and carrying
value of the PEAKS Senior Debt as of the dates indicated:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of
|
|
|
|
March 31,
2016
|
|
|
December 31,
2015
|
|
|
March 31,
2015
|
|
Outstanding principal balance
|
|
$
|
50,135
|
|
|
$
|
57,111
|
|
|
$
|
81,273
|
|
Debt discount
|
|
|
(5,585
|
)
|
|
|
(6,305
|
)
|
|
|
(9,613
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Carrying value
|
|
$
|
44,550
|
|
|
$
|
50,806
|
|
|
$
|
71,660
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
We recorded $15,634 as a current liability as of March 31, 2016, which represented our estimate of the
amount of the carrying value of the PEAKS Senior Debt that we expect to be due in the 12 months immediately following March 31, 2016.
The PEAKS Senior Debt matures in January 2020. There are no scheduled principal repayment requirements for the PEAKS Senior Debt prior to the
January 2020 maturity date. Under the terms of the PEAKS Program documents, however, amounts received on a monthly basis by the PEAKS Trust that exceed the fees and expenses of the PEAKS Trust then due and the interest then due on the PEAKS Senior
Debt are to be paid to reduce the outstanding principal balance of the PEAKS Senior Debt. In the three months ended March 31, 2016, the aggregate amount of principal payments on the PEAKS Senior Debt was $6,976.
The following table sets forth the estimated principal payments on the PEAKS Senior Debt in the periods indicated:
|
|
|
|
|
Fiscal Year Ending December 31,
|
|
Amount
|
|
2016
|
|
$
|
20,181
|
|
2017
|
|
|
8,704
|
|
2018
|
|
|
8,582
|
|
2019
|
|
|
9,355
|
|
2020
|
|
|
10,289
|
|
|
|
|
|
|
Total
|
|
$
|
57,111
|
|
|
|
|
|
|
The PEAKS Senior Debt bears interest at a variable rate based on the LIBOR, plus a 550 basis point margin. The
minimum LIBOR rate applied to the PEAKS Senior Debt cannot be less than 2.00%. The effective interest rate on the PEAKS Senior Debt was approximately:
|
|
|
14.5% per annum in the three months ended March 31, 2016; and
|
|
|
|
16.3% per annum in the three months ended March 31, 2015.
|
The following table sets
forth the total amount of contractual interest expense and discount accretion that we recognized on the PEAKS Senior Debt in the periods indicated:
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
March 31,
|
|
|
|
2016
|
|
|
2015
|
|
Contractual interest expense
|
|
$
|
1,038
|
|
|
$
|
1,604
|
|
Discount accretion
|
|
|
720
|
|
|
|
1,655
|
|
|
|
|
|
|
|
|
|
|
Total interest expense
|
|
$
|
1,758
|
|
|
$
|
3,259
|
|
|
|
|
|
|
|
|
|
|
The assets of the PEAKS Trust (which include, among other assets, the PEAKS Trust Student Loans) serve as
collateral for, and are intended to be the principal source of, the repayment of the PEAKS Senior Debt. Payment of the PEAKS Senior Debt may be accelerated by the indenture trustee of the PEAKS Trust or by the holders of the PEAKS Senior Debt in
response to certain events of default under the indenture under the PEAKS Program (the PEAKS Indenture), including, among other things:
|
|
|
a payment default by the PEAKS Trust;
|
|
|
|
a default in the performance or observation of the PEAKS Trusts covenants, agreements or conditions under the PEAKS Indenture;
|
|
|
|
a breach of our obligations under the PEAKS Guarantee; and
|
|
|
|
certain bankruptcy events with respect to the PEAKS Trust or us.
|
An acceleration of the
payment of the PEAKS Senior Debt would result in an acceleration of our obligation to pay the full amount of the PEAKS Senior Debt pursuant to the terms of the PEAKS Guarantee, if the PEAKS Trust was not able to make that payment (and we believe
that it is unlikely that the PEAKS Trust would be able to make that payment). The acceleration of our obligation to pay the full amount of the PEAKS Senior Debt, and/or our inability to make that payment, could also result in cross-defaults under
the Financing Agreement.
Asset/Liability Ratio
. The PEAKS Trust must maintain a minimum required Asset/Liability Ratio. The
minimum required Asset/Liability Ratio is 1.05/1.00. The applicable required Asset/Liability Ratio as of each monthly measurement date, however, is based on our compliance, as of the prior quarterly measurement date, with certain metrics specified
in the PEAKS Program documents, including maximum leverage ratios and minimum liquidity amounts. If we are not in compliance with those metrics as of the end of a fiscal quarter, the required Asset/Liability Ratio increases to 1.40/1.00, until the
monthly measurement date following the
23
end of a succeeding quarter at which we are in compliance with those metrics. We were not in compliance with those metrics as of March 31, 2016. For purposes of computing the Asset/Liability
Ratio, as of March 31, 2016, the amount of the assets of the PEAKS Trust was $68,273 and the amount of the liabilities was $50,135. The amounts used to calculate the Asset/Liability Ratio include, for the assets, cash and the contractual
balance of the PEAKS Trust Student Loans that have not defaulted, and, for the liabilities, the amount of the contractual balance of the PEAKS Senior Debt.
If the amount of the assets of the PEAKS Trust does not equal or exceed the outstanding PEAKS Senior Debt by the applicable required
Asset/Liability Ratio on a monthly measurement date, we are required to make a payment under the PEAKS Guarantee in the following month in an amount that would reduce the outstanding principal balance of the PEAKS Senior Debt to the extent necessary
to cause the ratio of the assets of the PEAKS Trust to the resulting outstanding PEAKS Senior Debt to equal or exceed the applicable required Asset/Liability Ratio.
In order to cause the PEAKS Trust to maintain the applicable required Asset/Liability Ratio, we made payments of $4,534 in the three months
ended March 31, 2016, and $30,090 in the year ended December 31, 2015 under the PEAKS Guarantee that were applied by the PEAKS Trust to reduce the amount of the PEAKS Senior Debt. See Note 11 Commitments and Contingencies, for a
discussion of our projected PEAKS Guarantee payments for 2016 through 2020.
As a consequence of the Restatements, the quarterly and
annual reports for the affected periods that we were required to deliver to the indenture trustee of the PEAKS Trust under the PEAKS Guarantee were inaccurate. We delivered corrected reports to the indenture trustee on March 14, 2016, and we
believe that if any breach of the PEAKS Guarantee or any event of default under the PEAKS Indenture had occurred as a result of the Restatements, that our delivery of the corrected reports has cured any such breach or event of default. We cannot
predict, however, whether the holders of the PEAKS Senior Debt will assert other breaches of the PEAKS Guarantee by us or assert that any breach of the PEAKS Guarantee or event of default under the PEAKS Indenture was not properly cured.
9.
|
Earnings Per Common Share
|
Earnings per common share for all periods have been calculated in conformity with ASC 260, Earnings Per Share.
This data is based on historical net income and the weighted average number of shares of our common stock outstanding during each period as set forth in the following table:
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
|
March 31,
|
|
|
|
2016
|
|
|
2015
|
|
Shares:
|
|
|
|
|
|
|
|
|
Weighted average number of shares of common stock outstanding
|
|
|
23,742
|
|
|
|
23,560
|
|
Shares assumed issued (less shares assumed purchased for treasury) for stock-based
compensation
|
|
|
114
|
|
|
|
259
|
|
|
|
|
|
|
|
|
|
|
Outstanding shares for diluted earnings per share calculation
|
|
|
23,856
|
|
|
|
23,819
|
|
|
|
|
|
|
|
|
|
|
A total of approximately 1.9 million shares in the three months ended March 31, 2016 and
1.2 million shares in the three months ended March 31, 2015 were excluded from the calculation of our diluted earnings per common share, because the effect was anti-dilutive.
10.
|
Employee Pension Benefits
|
The following table sets forth the components of net periodic pension benefit of the ESI Pension Plan and ESI Excess Pension
Plan in the periods indicated:
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
March 31,
|
|
|
|
2016
|
|
|
2015
|
|
Interest cost
|
|
$
|
403
|
|
|
$
|
409
|
|
Expected return on assets
|
|
|
(1,225
|
)
|
|
|
(1,383
|
)
|
Recognized net actuarial loss
|
|
|
0
|
|
|
|
1
|
|
Amortization of prior service (credit)
|
|
|
(388
|
)
|
|
|
(389
|
)
|
|
|
|
|
|
|
|
|
|
Net periodic pension (benefit)
|
|
$
|
(1,210
|
)
|
|
$
|
(1,362
|
)
|
|
|
|
|
|
|
|
|
|
The benefit accruals under the ESI Pension Plan and ESI Excess Pension Plan were frozen effective
March 31, 2006. As a result, no service cost has been included in the net periodic pension benefit.
We did not make any
contributions to the ESI Pension Plan or the ESI Excess Pension Plan in the three months ended March 31, 2016 or 2015. We do not expect to make any significant contributions to the ESI Pension Plan or the ESI Excess Pension Plan in 2016.
24
The following table sets forth the changes in the components of Accumulated other comprehensive
income (loss) on our Condensed Consolidated Balance Sheet in the three months ended March 31, 2016:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Defined Benefit Pension Items
|
|
|
|
Accumulated
Other
Comprehensive
Income (Loss)
|
|
|
Income Tax
Benefit
(Expense)
|
|
|
Accumulated
Other
Comprehensive
Income (Loss) Net
of Income Tax
|
|
Balance at December 31, 2015
|
|
$
|
(2,869
|
)
|
|
$
|
1,176
|
|
|
$
|
(1,693
|
)
|
Amortization of:
|
|
|
|
|
|
|
|
|
|
|
|
|
Actuarial (gains) losses
|
|
|
0
|
|
|
|
0
|
|
|
|
0
|
|
Prior service costs (credits)
|
|
|
(388
|
)
|
|
|
149
|
|
|
|
(239
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at March 31, 2016
|
|
$
|
(3,257
|
)
|
|
$
|
1,325
|
|
|
$
|
(1,932
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The reclassification of prior service costs or credits from Accumulated other comprehensive income (loss) are
included in the computation of net periodic pension benefit. Approximately $783 of net periodic pension benefit was included in Cost of educational services and approximately $427 of net periodic pension benefit was included in Student services and
administrative expenses in our Condensed Consolidated Statement of Operations in the three months ended March 31, 2016.
11.
|
Commitments and Contingencies
|
As part of our normal operations, one of our insurers issues surety bonds for us that are required by various education
authorities that regulate us. We are obligated to reimburse our insurer for any of those surety bonds that are paid by the insurer. As of March 31, 2016, the total face amount of those surety bonds was approximately $22,300. As of
March 31, 2016, we also had caused a letter of credit with a face amount of approximately $106 to be issued to one of our state regulatory agencies.
Our institutions failure to submit their 2013 audited consolidated financial statements and the 2013 compliance audits of their
administration of the Title IV Programs in which they participate (Compliance Audits) to the ED by the due date resulted in sanctions imposed by the ED on our institutions that included, among other things, our institutions having to
submit a letter of credit payable to the ED. We caused a letter of credit payable to the ED in the amount of $79,708 (the ED Letter of Credit) to be issued on October 31, 2014. On December 16, 2015, we and the ED entered into
an agreement (the ED Agreement), which provides that we would provide funds to the ED for the ED to maintain in an escrow account (the ED Escrowed Funds) in lieu of the ED Letter of Credit. On December 17, 2015, we
provided to the ED funds in the amount of $79,708, which amount is subject to further adjustment by the ED based upon changes in our annual federal student aid funding, and based on the EDs determination of the percentage of our annual federal
student aid funding that must be maintained. The ED Letter of Credit was cancelled effective December 22, 2015. As of March 31, 2016 and December 31, 2015 the amount of the ED Escrowed Funds held by the ED was $79,708.
The ED Agreement provides that the ED may draw on the ED Escrowed Funds upon certification by the ED that the drafted funds will be used for
one or more of the following purposes:
|
|
|
to pay refunds of institutional or non-institutional charges owed to or on behalf of current or former students of our institutions, whether our institutions remain open or have closed;
|
|
|
|
to provide for the teach-out of students enrolled at the time of closure of our institutions; and
|
|
|
|
to pay any liabilities owing to the ED arising from acts or omissions by our institutions, on or before November 4, 2019, in violation of requirements set forth in the HEA, including the violation of any agreement
entered into by our institutions with the ED regarding the administration of Title IV Programs.
|
Claims and
Contingencies.
Claims and contingencies that we are subject to include those related to litigation, government investigations, business transactions, tax matters and employee-related matters, among others. We record a liability for those
claims and contingencies, if it is probable that a loss will result and the amount of the loss can be reasonably estimated. Although we believe that our estimates related to any claims and contingencies are reasonable, we cannot make any assurances
with regard to the accuracy of our estimates, and actual results could differ materially.
25
The following table sets forth the amounts of our recorded liability related to our claims and
contingencies and where the amounts were included on our Condensed Consolidated Balance Sheets as of the dates indicated:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of
|
|
|
|
March 31,
2016
|
|
|
December 31,
2015
|
|
|
March 31,
2015
|
|
Other current liabilities
|
|
$
|
15,200
|
|
|
$
|
16,330
|
|
|
$
|
14,408
|
|
Other liabilities
|
|
|
588
|
|
|
|
588
|
|
|
|
598
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
15,788
|
|
|
$
|
16,918
|
|
|
$
|
15,006
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The following table sets forth the activity with respect to our recorded liability related to our claims and
contingencies in the periods indicated:
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
March 31,
|
|
|
|
2016
|
|
|
2015
|
|
Balance at beginning of period
|
|
$
|
16,918
|
|
|
$
|
15,574
|
|
Increases (decreases) from:
|
|
|
|
|
|
|
|
|
Additional accruals, other
(1)
|
|
|
6,509
|
|
|
|
5,517
|
|
Payments, other
(2)
|
|
|
(7,639
|
)
|
|
|
(6,085
|
)
|
|
|
|
|
|
|
|
|
|
Balance at end of period
|
|
$
|
15,788
|
|
|
$
|
15,006
|
|
|
|
|
|
|
|
|
|
|
(1)
|
Consists of accruals for legal fees.
|
(2)
|
Consists of payments for legal and other contingencies.
|
In connection with estimating our
recorded liability for claims and contingencies as of March 31, 2016, December 31, 2015 and March 31, 2015, we considered whether additional losses for claims and contingencies were reasonably possible, could be estimated and
might be material to our financial condition, results of operations or cash flows. As with any estimate, as facts and circumstances change, the recorded liability and estimated range of reasonably possible losses could change significantly. With
respect to legal proceedings, we determined that we cannot provide an estimate of the possible losses, or the range of possible losses, in excess of the amount, if any, accrued, for various reasons, including but not limited to some or all of the
following:
|
|
|
there are significant factual issues to be resolved;
|
|
|
|
there are novel or unsettled legal issues presented;
|
|
|
|
the proceedings are in the early stages;
|
|
|
|
there is uncertainty as to the likelihood of a class being certified or decertified or the ultimate size and scope of the class;
|
|
|
|
there is uncertainty as to the outcome of pending appeals or motions; and
|
|
|
|
in many cases, the plaintiffs have not specified damages in their complaint or in court filings.
|
We may resolve certain federal and state income tax matters presently under examination within the 12 months immediately following the date of
this filing. As of March 31, 2016, we estimated that it was reasonably possible that unrecognized tax benefits, excluding interest and penalties, could decrease in an amount ranging from $0 to $11,100, and that we could pay approximately
$4,200, in each case in the 12 months immediately following the date of this filing due to the resolution of those matters.
We have
presented legal and professional fees related to certain lawsuits, investigations and accounting matters as a separate line item in our Condensed Consolidated Statements of Operations. A portion of the amounts included in this line item represent
expenses for various lawsuits, investigations and accounting matters that we believe are not representative of those normally incurred in the ordinary course of business. Certain of those lawsuits and investigations are described in detail, below.
The expenses for the accounting matters included in this line item related primarily to:
|
|
|
services relating to accounting for the Private Education Loans; and
|
|
|
|
services relating to the accounting for the CUSO Consolidation in the three months ended March 31, 2015.
|
Guarantees.
PEAKS Guarantee and Purchase Obligation
.
Under the PEAKS Guarantee, we guarantee payment of the
principal and interest owed on the PEAKS Senior Debt, the administrative fees and expenses of the PEAKS Trust and a minimum required Asset/Liability Ratio. The PEAKS Guarantee contains, among other things, representations and warranties and events
of default that we believe are customary for guarantees of this type. In addition, under the PEAKS Program, some or all of the holders of the PEAKS Senior Debt could require us to purchase their PEAKS Senior Debt, if the law is changed to reduce the
maximum allowable percentage of our annual revenue derived from Title IV Program funds from 90% to 75% or less. At this time, we believe that the likelihood of such a change in the law is remote. Our guarantee and purchase obligations under the
PEAKS Program remain in effect until the PEAKS Senior Debt and the PEAKS Trusts fees and expenses are paid in full. At such time, we will be entitled to repayment of the amount of any payments we made under the PEAKS Guarantee to the extent
that funds are remaining in the PEAKS Trust. The PEAKS Senior Debt matures in January 2020 and, therefore, we do not expect to begin receiving any repayment of amounts that we previously paid under the PEAKS Guarantee until February 2020.
26
We consolidated the PEAKS Trust in our consolidated financial statements beginning on
February 28, 2013. See Note 5 Variable Interest Entities, for a further discussion of the PEAKS Consolidation. As a result, the assets and liabilities of the PEAKS Trust have been included on, and all intercompany transactions have been
eliminated from, our Condensed Consolidated Balance Sheets as of March 31, 2016, December 31, 2015 and March 31, 2015.
Projected PEAKS Guarantee Payments
. We believe that it is probable that we will make additional payments under the PEAKS Guarantee and
estimate that those payments may be approximately $6,700 from April 1, 2016 through December 31, 2016, $600 in 2017 and $10,300 in 2020. All of these payments are expected to reduce the outstanding principal balance of the PEAKS Senior
Debt, which would result in an outstanding principal balance of the PEAKS Senior Debt of approximately $36,000 as of December 31, 2016, $28,000 as of December 31, 2017 and $0 as of January 31, 2020. See Note 8 Debt, for a
further discussion of the PEAKS Senior Debt. After the PEAKS Senior Debt matures in January 2020, the PEAKS Trust will continue to collect on PEAKS Trust Student Loans that remain in repayment and collect recoveries on PEAKS Trust Student Loans that
have been charged off. The only obligation of the PEAKS Trust, at that time, will be the payment of the fees and expenses of the PEAKS Trust. As a result, we believe that, after that time, we may recover from the PEAKS Trust, in the aggregate,
approximately $35,000 of the amount that we have paid or will pay under the PEAKS Guarantee. See below for information regarding the assumptions on which those estimates are based.
The estimated amount and timing of future payments and recoveries with respect to the PEAKS Guarantee discussed above and elsewhere in this
report are only estimates, are based on numerous assumptions and are subject to change. As with any estimate, as facts and circumstances change, the estimated amounts and timing could change. We made a number of assumptions in preparing the
estimates, which assumptions may not be correct. The assumptions included, among other things, the following:
|
|
|
the repayment performance of the PEAKS Trust Student Loans, the proceeds from which will be used to repay the PEAKS Senior Debt and to pay the fees and expenses of the PEAKS Trust, and the performance of which also
affects the Asset/Liability Ratio;
|
|
|
|
the fact that those loans will consist of a large number of loans of individually immaterial amounts;
|
|
|
|
the fact that the interest rate on the PEAKS Senior Debt is a variable rate based on the LIBOR plus a margin; and
|
|
|
|
the amount of fees and expenses of the PEAKS Trust, much of which is based on the principal balance of the PEAKS Trust Student Loans.
|
See also
PEAKS Guarantee and CUSO RSA Payments in Certain Periods,
for information regarding certain payments
we have made related to the PEAKS Program.
CUSO RSA
. On February 20, 2009 we entered into the CUSO RSA in connection
with the CUSO Program. Under the CUSO RSA, we guarantee the repayment of the principal amount (including capitalized origination fees) and accrued interest payable on any private education loans made under the CUSO Program that are charged off above
a certain percentage of the private education loans made under the CUSO Program, based on the annual dollar volume. The total initial principal amount of private education loans that the CUSO purchased under the CUSO Program was approximately
$141,000. No new private education loans were or will be originated under the CUSO Program after December 31, 2011, but immaterial amounts related to loans originated prior to that date were disbursed by the lender through June 2012. Our
obligations under the CUSO RSA will remain in effect, until all private education loans made under the CUSO Program are paid in full. The standard repayment term for a private education loan made under the CUSO Program is ten years, with repayment
generally beginning six months after a student graduates or three months after a student withdraws or is terminated from his or her program of study.
Pursuant to the CUSO RSA, we are required to maintain collateral to secure our guarantee obligation in an amount equal to a percentage of the
outstanding balance of the private education loans disbursed to our students under the CUSO Program. As of March 31, 2016, December 31, 2015 and March 31, 2015, the total collateral maintained in a restricted bank account was
approximately $8,630. This amount was included in Collateral deposits on our Condensed Consolidated Balance Sheets as of each of those dates. The CUSO RSA also requires that we comply with certain covenants, including that we maintain certain
financial ratios which are measured on a quarterly basis and that we deliver compliance certificates on a quarterly basis setting forth the status of our compliance with those financial ratios. If we are not in compliance with those covenants at the
end of each fiscal quarter, we are required to increase the amount of collateral maintained in the restricted bank account to a predetermined amount, until the end of a succeeding quarter at which we are in compliance with those covenants. The
predetermined amount is based on the percentage of the aggregate principal balance of the private education loans made under the CUSO Program that exceeds a certain percentage as of the end of each fiscal quarter.
Under the CUSO RSA, we have the right to elect to make Discharge Payments with respect to private education loans made under the CUSO Program
that have been charged off. The effect of a making a Discharge Payment related to a private education loan is to reduce the aggregate amount that we may have to pay under our guarantee obligations with respect to that loan. We have claimed as an
offset against amounts owed to us under the Revolving Note amounts that would have the effect of discharging our obligations with respect to certain charged off loans under the CUSO RSA. In addition, in the three months ended March 31, 2015, we
made Discharge Payments to the CUSO. We did not make any Discharge Payments in the three months ended March 31, 2016. Making Discharge Payments results in us paying amounts to the CUSO in advance of when a guarantee payment would be due, which
would negatively impact our liquidity in a particular period, but results in us paying a lesser amount than we otherwise would have been required to pay under our guarantee obligation in future periods under the CUSO RSA. See Note 5 Variable
Interest Entities, for a further discussion of Discharge Payments.
27
We consolidated the CUSO in our consolidated financial statements beginning on September 30,
2014. See Note 5 Variable Interest Entities, for a further discussion of the CUSO Consolidation. As a result, the assets and liabilities of the CUSO have been included on, and all intercompany transactions have been eliminated from, our
Condensed Consolidated Balance Sheets as of March 31, 2016, December 31, 2015 and March 31, 2015.
CUSO RSA
Amendment.
On June 8, 2015, we entered into a Sixth Amendment to the CUSO RSA (the Sixth Amendment to CUSO RSA) with the CUSO. The Sixth Amendment to CUSO RSA provides that:
|
|
|
the period of time during which we are not required to comply with the debt service ratio covenant under the CUSO RSA is extended through March 31, 2016;
|
|
|
|
the period of time during which we are not required to comply with the current ratio covenant under the CUSO RSA is extended through March 31, 2016;
|
|
|
|
we are not required to comply with the average persistence percentage covenant under the CUSO RSA as of the end of each fiscal quarter ending March 31, 2015 through March 31, 2016;
|
|
|
|
we make a payment of $6,544 to the CUSO, which payment is considered a Discharge Payment under the CUSO RSA;
|
|
|
|
at our option, we may defer the payment of any amounts otherwise becoming due by us under the CUSO RSA between June 8, 2015 and December 31, 2015, which payments must be made by us on or before January 4,
2016; and
|
|
|
|
the payments deferred by us will not bear interest, unless we do not pay such amounts by January 4, 2016, in which case any portion of any deferred payments remaining unpaid as of that date will accrue interest at
the rate of 12.5% per annum, from the date such deferred payment would otherwise have been due absent the deferral provided in the Sixth Amendment to CUSO RSA.
|
We made the $6,544 Discharge Payment on June 10, 2015, which had the effect of reducing the amount of Regular Payments that we otherwise
would have had to make in 2015 by approximately $2,000. The reason for the provision in the Sixth Amendment to CUSO RSA that permits us to defer to 2016 the payment of any amounts otherwise becoming due between June 8, 2015 and
December 31, 2015 is because without such deferral, we believed that we would have exceeded the limitation under the Financing Agreement on amounts that we could pay in 2015 under the CUSO RSA and the PEAKS Guarantee. We deferred the full
amount of the payments due in June 2015 through December 2015 under the CUSO RSA, which totaled $6,092. Recoveries of charged-off loans received by the CUSO from June 2015 through December 2015 and due to us were $761 and were not paid to us. We
utilized those recovery amounts to offset against amounts that we owed under the CUSO RSA in January 2016, resulting in a payment of $5,331 related to this deferral.
We believe that, based on our current projections, we may not be in compliance with certain covenants under the CUSO RSA as of June 30,
2016 and, as a result, will be required to deposit approximately $200 as additional collateral in August 2016, based on our estimate of the required collateral amount as of June 30, 2016.
Projected CUSO RSA Payments
. We believe that it is probable that we will make additional payments under the CUSO RSA. We are entitled
to all amounts that the CUSO recovers from loans in a particular loan pool made under the CUSO Program that have been charged-off, until all payments that we made under the CUSO RSA with respect to that loan pool have been repaid to us by the CUSO.
Pursuant to the CUSO RSA, we have the right to offset amounts that we owe under the CUSO RSA by the amount of recoveries from charged-off loans made under the CUSO Program that are owed, but have not been paid, to us.
Based on various assumptions, including the historical and projected performance and collections of the CUSO Student Loans, we believe that we
will make payments under the CUSO RSA as set forth in the following table:
|
|
|
|
|
|
|
|
|
|
|
|
|
Year
|
|
Estimated
Regular
Payments
|
|
|
Estimated
Recoveries
(1)
|
|
|
Estimated
Total
Payments,
Net
|
|
2016
|
|
$
|
18,000
|
(2)
|
|
$
|
(1,800
|
)
(3)
|
|
$
|
16,200
|
|
2017
|
|
|
13,000
|
|
|
|
(1,000
|
)
|
|
|
12,000
|
|
2018
|
|
|
14,000
|
|
|
|
(1,000
|
)
|
|
|
13,000
|
|
2019 and later
(4)
|
|
|
95,000
|
|
|
|
0
|
|
|
|
95,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
140,000
|
|
|
$
|
(3,800
|
)
|
|
$
|
136,200
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
We expect to offset Regular Payments due to the CUSO from us under the CUSO RSA by the recoveries from charged-off loans that are due to us from the CUSO.
|
(2)
|
This amount includes $6,092 of Regular Payments that otherwise would have been due in 2015, but were deferred to, and paid in, January 2016 as allowed under the Sixth Amendment to CUSO RSA.
|
(3)
|
This amount includes $761 of recoveries from charged-off loans received by the CUSO from June 8, 2015 through December 31, 2015 that were not paid to us that we offset against amounts owed by us under the CUSO
RSA in January 2016.
|
(4)
|
We believe that the amount in this row will be paid by us in approximately equal portions in each of 2019 through 2025.
|
28
Our estimates of the future payment amounts under the CUSO RSA and the timing of those payments
assume, among other factors, that we do not make any Discharge Payments in 2016 and future years, based on the uncertainty related to the amount of future operating cash flows that will be available to us to make Discharge Payments. If we do make
Discharge Payments in any future years, the effect of those Discharge Payments will be to reduce the total amount of our projected future payments under the CUSO RSA.
The estimated amount of future payments under the CUSO RSA assumes that an offset that we made in 2013 of certain payment obligations under
the CUSO RSA against the CUSOs obligations owed to us under the Revolving Note will not be determined to have been improper. See
PEAKS Guarantee and CUSO RSA Payments in Certain Periods
below for a further
discussion of that offset. In the event that offset is determined to be improper, we may be required to pay the CUSO approximately $10,417, net of approximately $1,049 of recoveries from charged-off loans, which would be in addition to the estimated
payment amounts set forth above.
The estimated amount and timing of future payments and recoveries with respect to the CUSO RSA discussed
above are only estimates, are based on numerous assumptions and are subject to change. As with any estimate, as facts and circumstances change, the estimated amounts and timing could change. We made a number of assumptions in preparing the
estimates, which assumptions may not be correct. The assumptions included, among other things, the following:
|
|
|
the repayment performance of the private education loans made under the CUSO Program;
|
|
|
|
the timing and rate at which those private education loans will be paid;
|
|
|
|
the changes in the variable interest rates applicable to those private education loans;
|
|
|
|
the amounts and timing of collections in the future on those private education loans that have been charged off; and
|
|
|
|
our ability to utilize the available options for payment of our obligations under the CUSO RSA.
|
PEAKS Guarantee and CUSO RSA Payments in Certain Periods
.
The following table sets forth the approximate aggregate amount of
PEAKS Guarantee payments and CUSO RSA payments that were made in the periods indicated:
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
March 31,
|
|
Type of Payment
|
|
2016
|
|
|
2015
|
|
PEAKS Guarantee Payments
|
|
$
|
4,534
|
|
|
$
|
13,637
|
|
CUSO RSA Regular Payments
|
|
|
2,597
|
(1)
|
|
|
2,280
|
(2)
|
CUSO RSA Discharge Payments
|
|
|
0
|
|
|
|
2,709
|
|
CUSO RSA Deferred Payment
|
|
|
5,331
|
(3)
|
|
|
0
|
|
|
|
|
|
|
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Total
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$
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12,462
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$
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18,626
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(1)
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This amount is net of $294 of recoveries from charged-off loans owed to us that we offset against amounts owed by us under the CUSO RSA.
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(2)
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This amount is net of $290 of recoveries from charged-off loans owed to us that we offset against amounts owed by us under the CUSO RSA.
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(3)
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This amount is net of $761 of recoveries from charged-off loans received by the CUSO from June 8, 2015 through December 31, 2015 that were not paid to us that we offset against amounts owed by us under the
CUSO RSA in January 2016.
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In the three months ended March 31, 2016 and 2015, we offset all recoveries from charged-off loans that were
due to us from the CUSO against the amounts we owed to the CUSO under the CUSO RSA.
Since 2013, we have not offset any amounts owed by us
under the CUSO RSA against amounts owed to us by the CUSO under the Revolving Note. In the first quarter of 2013, we notified the CUSO that we had determined that the CUSO was in default of its obligations to us under the agreement pursuant to which
the Revolving Note was issued and, as a result of that default, all amounts under the Revolving Note were immediately due and payable. We also notified the CUSO that we would not make payments under the CUSO RSA until we received credit for the full
amount due us under the Revolving Note, based on the provisions of the CUSO Program documents that allow us to set off amounts owed by us under the CUSO RSA against amounts owed to us by the CUSO under the Revolving Note. At that time, the
outstanding amount of the Revolving Note due to us was approximately $8,200, representing principal and accrued interest.
In response to
our notification, the CUSO denied that it was in default and refused our demand to immediately pay the Revolving Note in full. As a consequence, over the period from February 2013 through August 2013, we offset our then current payment obligations
under the CUSO RSA and the amount of Discharge Payments we elected to make during that period against all of the CUSOs obligations owed to us under the Revolving Note (the Offset).
We understand that the CUSOs position is that the Offset was improper, because it has not defaulted and, even if it had defaulted, the
assets of the CUSO against which we could offset or exercise our other remedies were limited. We further understand the CUSOs position to be that, because the Offset was improper, we are in default under the CUSO RSA. In April 2013, the CUSO
29
notified us that it had taken control of the restricted account containing the cash collateral that we deposited to secure our obligations under the CUSO RSA (the Collateral). To our
knowledge, the CUSO has taken no further action related to the Collateral. We believe that our good faith exercise of our right of offset provided for in the CUSO Program documents does not constitute an event of default under the CUSO RSA, and that
the CUSOs seizure of control of the restricted account containing the Collateral constitutes an additional default by the CUSO. We cannot assure you, however, that the Offset will ultimately be determined to have been proper. In the event of a
default by us under the CUSO RSA related to the Offset, we may be required to pay to the CUSO approximately $10,417, net of approximately $1,049 of recoveries from charged-off loans that are owed, but have not been paid, to us. If, instead, the CUSO
was to withdraw Collateral in that amount from the restricted bank account, we would be required to deposit that amount of cash in the account to maintain the required level of Collateral.
Litigation
.
We are subject to various litigation. We cannot assure you of the ultimate outcome of any litigation
involving us. Although we believe that our estimates related to any litigation are reasonable, deviations from our estimates could produce a materially different result. Any litigation alleging violations of education or consumer protection laws
and/or regulations, misrepresentation, fraud or deceptive practices may also subject our affected campuses to additional regulatory scrutiny. The following is a description of pending litigation that falls outside the scope of litigation incidental
to the ordinary course of our business.
On December 22, 2008, we were served with a qui tam action that was filed on July 3,
2007 in the United States District Court for the Southern District of Indiana by a former employee (relator) on behalf of herself and the federal government under the following caption:
United States of America ex rel. Debra Leveski
v. ITT Educational Services, Inc.
(the Leveski Litigation). We were served with the Leveski Litigation after the U.S. Department of Justice declined to intervene in the litigation. On June 3, 2008, the relator filed an amended
complaint in the Leveski Litigation. On September 23, 2009, the court dismissed the Leveski Litigation without prejudice and gave the relator an opportunity to replead her complaint. On October 8, 2009, the relator filed a second amended
complaint. In the second amended complaint, the relator alleges that we violated the False Claims Act, 31 U.S.C. § 3729,
et seq
., and the HEA by compensating our sales representatives and financial aid administrators with commissions,
bonuses or other incentive payments based directly or indirectly on success in securing enrollments or federal financial aid. The relator alleges that all of our revenue derived from the federal student financial aid programs from July 3, 2001
through July 3, 2007 was generated as a result of our violating the HEA. The relator seeks various forms of recovery on behalf of herself and the federal government, including:
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treble the amount of unspecified funds paid to us for federal student grants;
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treble the amount of unspecified default payments, special allowance payments and interest received by lenders with respect to federal student loans received by our students;
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all civil penalties allowed by law; and
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attorneys fees and costs.
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A qui tam action is a civil lawsuit brought by one or more individuals (a qui
tam relator) on behalf of the federal or state government for an alleged submission to the government of a false claim for payment. A qui tam action is always filed under seal and remains under seal, until the government decides whether
to intervene in the litigation. Whenever a relator files a qui tam action, the government typically initiates an investigation in order to determine whether to intervene in the litigation. If the government intervenes, it has primary control over
the litigation. If the government declines to intervene, the relator may pursue the litigation on behalf of the government. If the government or the relator is successful in the litigation, the relator receives a portion of the governments
recovery.
On August 8, 2011, the district court granted our motion to dismiss all of the relators claims in the Leveski
Litigation for lack of subject-matter jurisdiction and issued a judgment for us. On February 16, 2012, the relator in the Leveski Litigation filed a Notice of Appeal with the 7
th
Circuit
Court of Appeals regarding the final judgment entered by the district court dismissing all claims against us. On March 26, 2012, the district court in the Leveski Litigation awarded us approximately $395 in sanctions against the relators
attorneys for filing a frivolous lawsuit. Relators attorneys also appealed this award to the 7
th
Circuit Court of Appeals. On July 8, 2013, the 7
th
Circuit Court of Appeals reversed the district courts dismissal of the Leveski Litigation for lack of subject-matter jurisdiction and the award of sanctions against relators attorneys.
In addition, the 7
th
Circuit Court of Appeals remanded the Leveski Litigation back to the district court for further proceedings.
We have defended, and intend to continue to defend, ourselves vigorously against the allegations made in the complaint.
On March 11, 2013, a complaint in a securities class action lawsuit was filed against us, one of our current executive officers and one
of our former executive officers in the United States District Court for the Southern District of New York under the following caption:
William Koetsch, Individually and on Behalf of All Others Similarly Situated v. ITT Educational Services,
Inc., et al.
(the Koetsch Litigation). On April 17, 2013, a complaint in a securities class action lawsuit was filed against us, one of our current executive officers and one of our former executive officers in the United States
District Court for the Southern District of New York under the following caption:
Massachusetts Laborers Annuity Fund, Individually and on Behalf of All Others Similarly Situated v. ITT Educational Services, Inc., et al.
(the MLAF
Litigation). On July 25, 2013, the court consolidated the Koetsch Litigation and MLAF Litigation under the following caption:
In re ITT Educational Services, Inc. Securities Litigation
(the New York Securities
Litigation), and named the Plumbers and Pipefitters National Pension Fund and Metropolitan Water Reclamation District Retirement Fund as the lead plaintiffs. On October 7, 2013, an amended complaint was filed in the New York Securities
Litigation, and on
30
January 15, 2014, a second amended complaint was filed in the New York Securities Litigation. The second amended complaint alleges, among other things, that the defendants violated Sections
10(b) and 20(a) of the Securities Exchange Act of 1934, as amended (the Exchange Act) and Rule 10b-5 promulgated thereunder by:
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our failure to properly account for the 2007 RSA, CUSO RSA and PEAKS Program;
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employing devices, schemes and artifices to defraud;
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making untrue statements of material facts, or omitting material facts necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading;
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making the above statements intentionally or with reckless disregard for the truth;
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engaging in acts, practices, and a course of business that operated as a fraud or deceit upon lead plaintiffs and others similarly situated in connection with their purchases of our common stock;
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deceiving the investing public, including lead plaintiffs and the purported class, regarding, among other things, our artificially inflated statements of financial strength and understated liabilities; and
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causing our common stock to trade at artificially inflated prices and causing the plaintiff and other putative class members to purchase our common stock at inflated prices.
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The putative class period in this action is from April 24, 2008 through February 25, 2013. The plaintiffs seek, among other things,
the designation of this action as a class action, an award of unspecified compensatory damages, interest, costs and expenses, including counsel fees and expert fees, and such equitable/injunctive and other relief as the court deems appropriate. On
July 22, 2014, the district court denied most of our motion to dismiss all of the plaintiffs claims for failure to state a claim for which relief can be granted. On August 5, 2014, we filed our answer to the second amended complaint
denying all of the plaintiffs claims. Plaintiffs filed their motion for class certification on March 27, 2015. On June 16, 2015, to facilitate the parties efforts to resolve this action by mediation, the court entered a
stipulation and order providing for a three-month stay of all proceedings. On September 14, 2015, the court extended the stay by an additional two months.
Following a mediation which began in the third quarter of 2015, the parties came to an agreement in principle to settle the New York
Securities Litigation. On November 2, 2015, the parties in the New York Securities Litigation entered into a Stipulation and Agreement of Settlement (the New York Settlement) to resolve the action in its entirety. Under the terms of
the New York Settlement, we and/or our insurers would make a payment of $16,962 in exchange for the release of claims against the defendants and other released parties, by the plaintiffs and all settlement class members, and for the dismissal of the
action with prejudice. On November 2, 2015, the plaintiffs in the New York Securities Litigation filed the New York Settlement and related exhibits with the court and moved, among other things, for the court to preliminarily approve the New
York Settlement, to approve the contents and procedures for notice to potential settlement class members, to certify the New York Securities Litigation as a class action for settlement purposes only, and to schedule a hearing for the court to
consider final approval of the New York Settlement. On November 23, 2015, the court entered an order preliminarily approving the New York Settlement and scheduled a hearing for March 8, 2016 to consider final approval of the New York
Settlement. Prior to the March 8, 2016 hearing, potential settlement class members (all persons and entities who purchased or otherwise acquired our common stock between April 24, 2008 and February 25, 2013, both dates inclusive (with
limited exclusions)) had an opportunity to exclude themselves from participating in the New York Settlement or to raise objections with the court regarding the New York Settlement or any part thereof. On March 8, 2016, the court granted final
approval of the New York Settlement and entered an order dismissing the New York Securities Litigation with prejudice.
The New York
Settlement contains no admission of liability, and all of the defendants in the New York Securities Litigation have expressly denied, and continue to deny, all allegations of wrongdoing or improper conduct. Our insurance carriers funded a combined
$25,000 collectively towards the settlement payments for the New York Settlement and the Indiana Settlement (defined below).
On
September 30, 2014, a complaint in a securities class action lawsuit was filed against us, one of our current executive officers and one of our former executive officers in the United States District Court for the Southern District of Indiana
under the following caption:
David Banes, on Behalf of Himself and All Others Similarly Situated v. Kevin M. Modany,
et al. (the Banes Litigation). On October 3, 2014, October 9, 2014 and November 25, 2014,
three similar complaints were filed against us, one of our current executive officers and one of our former executive officers in the United States District Court for the Southern District of Indiana under the following captions:
Babulal
Tarapara, Individually and on Behalf of All Others Similarly Situated v. ITT Educational Services, Inc. et al.
(the Tarapara Litigation),
Kumud Jindal, Individually and on Behalf of All Others Similarly Situated v. Kevin Modany,
et al.
(the Jindal Litigation) and
Kristopher Hennen, Individually and on Behalf of All Others Similarly Situated v. ITT Educational Services, Inc. et al.
(the Hennen Litigation). On November 17, 2014, the
Tarapara Litigation and the Jindal Litigation were consolidated into the Banes Litigation. On January 21, 2015, the Hennen Litigation was consolidated into that consolidated action (the Indiana Securities Litigation). On
December 1, 2014, motions were filed in the Indiana Securities Litigation for the appointment of lead plaintiff and lead counsel. On March 16, 2015, the court appointed a lead plaintiff and lead counsel. Subsequently, the caption for the
Indiana Securities Litigation was changed to the following:
In re ITT Educational Services, Inc. Securities Litigation (Indiana).
On May 26, 2015, an amended complaint was filed in the Indiana Securities Litigation. The amended complaint alleges, among other things,
that the defendants violated Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 promulgated thereunder by knowingly or recklessly making false and/or misleading statements and failing to disclose material adverse facts about
31
our business, operations, prospects and financial results. Plaintiffs assert that the defendants engaged in a fraudulent scheme and course of business and that alleged misstatements and/or
omissions by the defendants caused members of the putative class to purchase our securities at artificially inflated prices. The amended complaint includes allegations relating to:
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the performance of the PEAKS Program and the CUSO Program;
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our guarantee obligations under the PEAKS Program and the CUSO Program;
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our accounting treatment of the PEAKS Program and the CUSO Program;
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consolidation of the PEAKS Trust in our consolidated financial statements;
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the impact of the PEAKS Program and the CUSO Program on our liquidity and overall financial condition;
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our compliance with Department of Education financial responsibility standards; and
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our internal controls over financial reporting.
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The putative class period in the Indiana Securities
Litigation is from February 26, 2013 through May 12, 2015. The plaintiffs in the Indiana Securities Litigation seek, among other things, the designation of the action as a proper class action, an award of unspecified compensatory damages
against all defendants, interest, costs, expenses, counsel fees and expert fees, and such other relief as the court deems proper. On July 14, 2015, to facilitate the parties efforts to resolve this action by mediation, the court granted a
joint motion for a stay of proceedings until October 13, 2015. On October 13, 2015, the court extended the stay to October 27, 2015. On October 27, 2015, the court further extended the stay. On November 3, 2015, due to the
filing of the Indiana Settlement (defined below), the stay was lifted.
Following a mediation that began in the third quarter of 2015, the
parties came to an agreement in principle to settle the Indiana Securities Litigation. On November 2, 2015, the parties in the Indiana Securities Litigation entered into a Stipulation and Agreement of Settlement (the Indiana
Settlement) to resolve the action in its entirety. Under the terms of the Indiana Settlement, we and/or our insurers would make a payment of $12,538 in exchange for the release of claims against the defendants and other released parties, by
the plaintiffs and all settlement class members, and for the dismissal of the action with prejudice. On November 2, 2015, the plaintiffs in the Indiana Securities Litigation filed the Indiana Settlement and related exhibits with the court and
moved, among other things, for the court to preliminarily approve the Indiana Settlement, to approve the contents and procedures for notice to potential settlement class members, to certify the Indiana Securities Litigation as a class action for
settlement purposes only, and to schedule a hearing for the court to consider final approval of the Indiana Settlement. On November 4, 2015, the court entered an order preliminarily approving the Indiana Settlement and scheduled a hearing for
March 10, 2016 to consider final approval of the Indiana Settlement. Prior to the March 10, 2016 hearing, potential settlement class members (all persons and entities who purchased or otherwise acquired our common stock, purchased or
otherwise acquired call options on our common stock, or wrote put options on our common stock, between February 26, 2013 and May 12, 2015, both dates inclusive (with limited exclusions)) had an opportunity to exclude themselves from
participating in the Indiana Settlement or to raise objections with the court regarding the Indiana Settlement or any part thereof. On March 10, 2016, the court entered an order finding that the Indiana Settlement is fair and reasonable and was
entered into in good faith, and the court stated that a separate order regarding the Indiana Settlement would follow. On March 24, 2016, the court entered a final judgment and order approving the Indiana Settlement and dismissing the Indiana
Securities Litigation with prejudice.
The Indiana Settlement contains no admission of liability, and all of the defendants in the Indiana
Securities Litigation have expressly denied, and continue to deny, all allegations of wrongdoing or improper conduct. Our insurance carriers funded a combined $25,000 collectively towards the settlement payments for the Indiana Settlement and the
New York Settlement.
On May 8, 2013, a complaint in a shareholder derivative lawsuit was filed against two of our current executive
officers, one of our former executive officers, all but two of our current Directors, and two former Directors in the United States District Court for the Southern District of New York under the following caption:
Sasha Wilfred, Derivatively on
Behalf of Nominal Defendant ITT Educational Services, Inc. v. Kevin M. Modany, et al.
(the Wilfred Litigation). On May 27, 2014, a complaint in a similar shareholder derivative lawsuit was filed against two of our current
executive officers, one of our former executive officers, all but two of our current Directors, and three former Directors in the United States District Court for the district of Delaware under the following caption:
Janice Nottenkamper,
Derivatively on Behalf of Nominal Defendant ITT Educational Services, Inc. v Kevin M. Modany, et al.
(the Nottenkamper Litigation).
On August 6, 2013, the parties agreed to stay the Wilfred Litigation until the New York Securities Litigation was dismissed with
prejudice or the defendants filed an answer in the New York Securities Litigation. On September 8, 2014, the district court approved the parties agreement for an additional stay of the Wilfred Litigation, until the earlier of a final
disposition of the New York Securities Litigation or 30 days after written notice terminating the stay was provided by any of the parties in the Wilfred Litigation to all other parties. On October 15, 2014, the Wilfred plaintiff terminated the
stay. Following plaintiffs termination of the stipulated stay, an amended complaint was filed in the Wilfred Litigation on November 17, 2014. On January 5, 2015, the defendants moved to dismiss or stay the Wilfred Litigation.
On April 29, 2015, the Nottenkamper Litigation was transferred to the United States District Court for the Southern District of New York.
On July 2, 2015, the Wilfred plaintiff requested leave from the court to file a second amended complaint. By order
32
dated July 28, 2015, the court granted plaintiffs request to file an amended complaint and denied the defendants pending motion to dismiss the earlier complaint as moot. On
July 28, 2015, the court also consolidated the Wilfred Litigation and the Nottenkamper Litigation, appointing plaintiff Sasha Wilfred as lead plaintiff in the consolidated action.
On August 21, 2015, lead plaintiff filed a consolidated amended complaint that alleges, among other things, that the defendants violated
state law, including breaching their fiduciary duties to us, grossly mismanaging us, abusing their control of us, wasting our corporate assets and being unjustly enriched, by:
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causing or allowing us to disseminate to our shareholders materially misleading and inaccurate information relating to a series of risk-sharing agreements through SEC filings, press releases, conference calls, and other
public statements and disclosures;
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willfully ignoring obvious and pervasive problems with our internal controls and practices and procedures, and failing to make a good faith effort to correct these problems or prevent their recurrence;
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violating and breaching fiduciary duties of care, loyalty, reasonable inquiry, oversight, good faith and supervision;
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causing or allowing us to misrepresent material facts regarding our financial position and business prospects; and
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abandoning their responsibilities and duties with regard to prudently managing our businesses in a manner imposed upon them by law.
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The consolidated amended complaint also refers to certain issues and events that arose subsequent to the commencement of the Wilfred Litigation, including
among other things, the agreements that we entered into with Mr. Modany and Mr. Fitzpatrick, dated August 4, 2014 and April 29, 2015, respectively, setting forth the terms of their resignations (the Resignation
Agreements), the CFPB complaint against us, our submission of a letter of credit to the ED, our restatement of certain financial results, our receipt of a Wells Notice from the SEC, and the SEC complaint against us.
The consolidated amended complaint seeks:
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disgorgement of all profits, benefits and other compensation obtained by the individual defendants;
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an order directing us to take all necessary actions to reform and improve our corporate governance and internal procedures; and
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costs and disbursements, including attorneys, accountants and experts fees, costs and expenses.
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On September 16, 2015, plaintiff Janice Nottenkamper was appointed as a co-lead plaintiff in the Wilfred Litigation. On
September 16, 2015, the court also entered a stipulation and order providing for a three-month stay of all proceedings to facilitate the parties efforts to resolve this consolidated action by mediation. On December 11, 2015, the
court extended the stay to January 27, 2016.
On December 23, 2014, a complaint in a shareholder derivative lawsuit was filed
against two of our current executive officers, one of our former executive officers, all but four of our current Directors, and two former Directors in the United States District Court for the Southern District of Indiana under the following
caption:
Michelle Lawrence, Derivatively on Behalf of Nominal Defendant ITT Educational Services, Inc. v. Kevin M. Modany, et al
. (the Lawrence Litigation). The complaint alleges, among other things, that the individual
defendants breached their fiduciary duties to us, abused their control, grossly mismanaged us and were unjustly enriched by:
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participating in misrepresentation of our business operations;
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failing to correct our public statements;
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failing to oversee our business and internal controls;
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causing us to issue false and misleading statements of material fact in our consolidated financial statements in our quarterly reports;
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subjecting us to multiple federal securities fraud class action lawsuits;
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causing us to restate our consolidated financial statements in our quarterly reports; and
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causing us to receive a Wells Notice from the SEC.
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The complaint seeks:
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disgorgement of all profits, benefits and other compensation obtained by the individual defendants;
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an order directing us to take all necessary actions to reform and improve our corporate governance and internal procedure, including taking action to strengthen the Boards supervision of operations, procedures for
greater shareholder input and for effective oversight of compliance; and
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costs and disbursements, including attorneys and experts fees, costs and expenses.
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On March 11, 2015, the district court approved the parties agreement to stay the Lawrence Litigation, until the earlier of: the
passage of 30 days after written notice of termination has been provided by any party, or the Indiana Securities Litigation is dismissed with prejudice or an answer in the Indiana Securities Litigation is filed.
33
On July 1, 2015, a complaint in a shareholder derivative lawsuit was filed against two of
our current executive officers, one of our former executive officers, all but two of our current Directors, and two former Directors in the Marion Superior Court, Indianapolis, Indiana under the following caption:
William McKee, Derivatively on
behalf of ITT Educational Services, Inc. v. Kevin Modany, et al. (
the McKee Litigation). The complaint alleges, among other things, that the individual defendants breached their fiduciary duties to us by:
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causing us to engage in unlawful conduct with respect to risky student loan financing programs;
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causing us to fail to disclose material information to shareholders regarding our business, financial condition, and accounting procedures;
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preparing and disseminating inaccurate press releases and SEC filings;
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failing to ensure the existence of appropriate and adequate internal financial controls;
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exposing us to substantial investigation costs, huge liability to stock purchasers, regulatory penalties, and the cost of defending the SEC proceeding and the securities litigations; and
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damaging our reputation and goodwill in the securities markets.
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The complaint seeks:
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a declaratory judgment;
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equitable and/or injunctive relief;
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an order directing us to reform and improve corporate governance and internal procedures; and
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costs and disbursements, including attorneys, accountants and experts fees, costs and expenses.
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On August 7, 2015, the court approved the parties agreement to stay the McKee Litigation, until the earlier of: the passage of 30
days after written notice of termination has been provided by any party, or a settlement of the Indiana Securities Litigation is approved by the court in that action, or the Indiana Securities Litigation is dismissed with prejudice, or an answer in
the Indiana Securities Litigation is filed.
On January 21, 2016, the parties in the Wilfred Litigation, Lawrence Litigation, and
McKee Litigation all entered into a Stipulation and Agreement of Settlement (the Derivative Settlement), subject to court approval, to settle the three shareholder derivative actions discussed above: (1) the Wilfred Litigation,
including the Nottenkamper Litigation consolidated thereunder; (2) the Lawrence Litigation; and (3) the McKee Litigation. The proposed Derivative Settlement is intended by the settling parties to fully, finally and forever resolve the
Wilfred Litigation, the Lawrence Litigation, and the McKee Litigation and to result in the dismissal of those actions with prejudice. Under the terms of the proposed Derivative Settlement, we will implement certain agreed upon corporate governance
reforms, to be administered by us and the Board of Directors if the Derivative Settlement becomes final and effective. Additionally, we have agreed to pay up to $1,100 in attorneys fees and expenses (the Derivative Fee Award) to
the plaintiffs counsel. One of our insurers funded half of the amount of the Derivative Fee Award, on behalf of the individual defendants in the Wilfred Litigation, the Lawrence Litigation, and the McKee Litigation.
On January 22, 2016, the Derivative Settlement and related exhibits were filed in the Wilfred Litigation, and the plaintiffs in the
Wilfred Litigation moved, among other things, for the court to preliminarily approve the Derivative Settlement and to approve the form and manner of notice to be provided to our shareholders. On January 29, 2016, the court in the Wilfred
Litigation entered an order preliminarily approving the Derivative Settlement, and scheduled a hearing for April 6, 2016 to consider final approval of the Derivative Settlement. Prior to the April 6, 2016 hearing, current shareholders had
an opportunity to raise objections, or otherwise be heard, regarding the terms of the Derivative Settlement and the Derivative Fee Award. On April 6, 2016, the court in the Wilfred Litigation granted final approval of the Derivative Settlement
and entered a final order and judgment dismissing the Wilfred Litigation with prejudice. Any appeal of the final order and judgment must be filed by May 6, 2016.
Pursuant to the terms of the Derivative Settlement after the order approving the Derivative Settlement becomes final and unappealable, the
plaintiffs in the Lawrence Litigation and the McKee Litigation will move their respective Indiana courts for the dismissal of their actions with prejudice. On January 28, 2016, the court in the Lawrence Litigation entered an order continuing
the stay of proceedings in that action unless and until the Derivative Settlement is canceled or terminated. On February 2, 2016, the court in the McKee Litigation ordered that the McKee plaintiff file an update as to the status of the
Derivative Settlement by June 29, 2016. Dismissal of all of the Wilfred Litigation, the Lawrence Litigation, and the McKee Litigation with prejudice is a material condition of the proposed Derivative Settlement, without which the Derivative
Settlement will not become effective. In the event that the Derivative Settlement does not become effective, the settling parties will be restored to their respective positions in each action as of the date immediately preceding the date of the
Derivative Settlement.
The Derivative Settlement does not include any admission of the validity of any of the claims the plaintiffs have
asserted in the Wilfred Litigation, the Lawrence Litigation, or the McKee Litigation, or of any liability with respect thereto. We have determined that the proposed Derivative Settlement is in our companys best interests, and it is intended to
eliminate the uncertainty, distraction, disruption, burden, and expense of further litigation of the Wilfred Litigation, the Lawrence Litigation, and the McKee Litigation.
On December 21, 2015, a complaint in a shareholder derivative lawsuit was filed against two of our current executive officers, one of our
former executive officers, all but two of our current Directors, and three former Directors in the United States District Court for the Southern District of Indiana under the following caption:
Donnald Canfield, Derivatively on Behalf of Nominal
Defendant ITT Educational Services, Inc. v. Kevin M. Modany, et al.
(the Canfield Litigation). The complaint alleges, among other things, that the individual defendants breached their fiduciary duties to us, and abused their control
by:
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failing to properly oversee our business;
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allowing us to mischaracterize our financial position and business prospects;
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causing us to issue false and misleading statements of material fact in SEC filings regarding a series of risk-sharing agreements related to student loan programs;
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failing to take sufficient steps to reduce risks associated with student loan default rates;
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subjecting us to securities class action lawsuits, government investigations, government enforcement actions, and their associated costs; and
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damaging our reputation and goodwill.
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The complaint also alleges that the defendants violated
Section 14(a) of the Exchange Act and Rule 14a-9 promulgated thereunder by misrepresenting or omitting material information in the Companys proxy statement filed with the SEC on March 13, 2012.
The complaint seeks:
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a declaratory judgment;
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unspecified compensatory and exemplary damages;
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an order directing us to reform and improve corporate governance and internal procedures; and
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costs and disbursements, including attorneys and experts fees, costs and expenses.
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On January 22, 2016, the defendants in the Canfield Litigation filed a motion to stay the Canfield Litigation pending the approval of the
Derivative Settlement for the settlement of the Wilfred Litigation, the Lawrence Litigation, and the McKee Litigation. On February 23, 2016, the court entered an order that no responsive pleading will be due in the Canfield Litigation until
after the courts ruling on the stay motion. On April 7, 2016, the defendants filed a notice of final approval of the Derivative Settlement in further support of defendants motion to stay the Canfield Litigation and requested that
the parties report to the court following the effective date of the Derivative Settlement, unless and until the Derivative Settlement is canceled or terminated.
Although the Wilfred Litigation, Lawrence Litigation, McKee Litigation, and Canfield Litigation are each brought nominally on behalf of us, we
expect to incur defense costs and other expenses in connection with those actions.
On May 18, 2012, we received a Civil
Investigative Demand (the Original CID) from the U.S. Consumer Financial Protection Bureau (the CFPB). In September 2013, the CFPB withdrew the Original CID, and we received a new Civil Investigative Demand (the New
CID) from the CFPB. Both the Original CID and the New CID provided that the purpose of the CFPBs investigation was, in part, to determine whether for-profit post-secondary companies, student loan origination and servicing
providers, or other unnamed persons have engaged or are engaging in unlawful acts or practices relating to the advertising, marketing, or origination of private student loans. Both the Original CID and the New CID contained broad requests for
oral testimony, production of documents and written reports related to private education loans made to our students, internal financing provided to our students and certain other aspects of our business. We provided documentation and other
information to the CFPB, while preserving our rights to object to its inquiry.
On February 26, 2014, the CFPB filed a complaint
against us in the United States District Court for the Southern District of Indiana under the following caption:
Consumer Financial Protection Bureau v. ITT Educational Services, Inc.
(the CFPB Litigation). The complaint claimed,
among other things, that we violated:
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Section 1036(a)(1) of the Consumer Financial Protection Act of 2010 (the CFPA), 12 U.S.C. § 5536(a)(1), which prohibits unfair, deceptive and abusive acts and practices, from July 21, 2011
through December 2011, by:
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subjecting consumers to undue influence or coercing them into taking out private education loans through a variety of unfair acts and practices designed to interfere with the consumers ability to make informed,
uncoerced choices;
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taking unreasonable advantage of consumers inability to protect their interest in selecting or using the private education loans; and
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taking unreasonable advantage of consumers reasonable reliance on us to act in the consumers interests; and
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the Truth in Lending Act, 15 U.S.C. §§ 1601
et seq
., and Regulation Z thereunder, 12 C.F.R. Part 1026, which require certain disclosures to be made in writing to consumers in connection with the
extension of consumer credit, since March 2009, by failing to disclose a discount that constituted a finance charge.
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We filed a motion to
dismiss the CFPB Litigation on several grounds. On March 6, 2015, the court issued an order denying our motion in part and granting it in part, including by dismissing the CFPBs claim under the Truth in Lending Act. On April 8, 2015,
we filed a notice of appeal to the United States Court for the Seventh Circuit from the order on the motion to dismiss. On April 20, 2016, the court dismissed our appeal for lack of jurisdiction. We have defended, and intend to continue to
defend, ourselves vigorously against the remaining allegations made in the complaint.
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On February 27, 2014, the New Mexico Attorney General filed a complaint against us in the
District Court of New Mexico under the following caption:
State of New Mexico, ex rel. Gary K King, Attorney General v. ITT Educational Services, Inc., et al.
(the New Mexico Litigation). On April 4, 2014, we removed the New
Mexico Litigation to the U.S. District Court for the District of New Mexico. In April 2014, the Attorney General filed a motion to remand the New Mexico Litigation to the District Court of New Mexico. On June 30, 2015, the U.S. District Court
remanded the New Mexico Litigation back to the state District Court. The complaint alleges, among other things, that we engaged in a pattern and practice of exploiting New Mexico consumers by using deceptive, unfair, unconscionable and unlawful
business practices in the marketing, sale, provision and financing of education goods and services in violation of New Mexicos Unfair Practices Act. In particular, the complaint contains allegations that:
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we misrepresented matters related to our nursing education program, including, without limitation, its programmatic accreditation status, the transferability of credits earned in the program and the curriculum of the
program;
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we misrepresented the terms of the financial aid available to students and the cost of our programs;
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we engaged in unfair or deceptive trade practices;
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we failed to issue refunds; and
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our form enrollment agreement contained unenforceable and unconscionable provisions.
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The complaint seeks:
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an order declaring portions of our enrollment agreement illusory, unconscionable and unenforceable;
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preliminary and permanent injunctive relief;
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disgorgement of unjust enrichment amounts;
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unspecified civil penalty amounts;
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reasonable costs, including investigative costs.
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On July 30, 2015, we filed a motion to
dismiss the New Mexico Litigation on several grounds and a motion to compel arbitration. On December 8, 2015, the court denied the motion to dismiss and the motion to compel arbitration. On December 11, 2015, we filed a notice of appeal
challenging the denial of our motion to compel arbitration. That appeal is pending in the court of appeals. On January 6, 2016, the State District Court issued an order providing for a stay of the case pending resolution of our appeal. The
Attorney General disputes that a stay is in effect and has filed a motion asking the State District Court to proceed with the nonarbitrable claims. We opposed the Attorney Generals motion to proceed. On March 24, 2016, the court granted
the Attorney Generals motion to proceed on nonarbitrable claims.
We have defended, and intend to continue to defend, ourselves
vigorously against the allegations made in the complaint.
On December 17, 2013, a complaint was filed against us in a purported
class action in the Superior Court of the State of California for the County of Los Angeles under the following caption:
La Sondra Gallien, an individual, James Rayonez, an individual, Giovanni Chilin, an individual, on behalf of themselves and
on behalf of all persons similarly situated v. ITT Educational Services, Inc., et al.
(the Gallien Litigation). The plaintiffs filed an amended complaint on February 13, 2014. The amended complaint alleges, among other
things, that under California law, we:
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failed to pay wages owed;
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failed to pay overtime compensation;
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failed to provide meal and rest periods;
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failed to provide itemized employee wage statements;
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engaged in unlawful business practices; and
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are liable for civil penalties under the California Private Attorney General Act.
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The
purported class includes recruiting representatives employed by us during the period of December 17, 2009 through December 17, 2013. The amended complaint seeks:
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compensatory damages, including lost wages and other losses;
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pay for missed meal and rest periods;
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attorneys fees, cost and expenses;
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civil and statutory penalties;
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such other and further relief as the court may deem equitable and appropriate.
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Following a
mediation that began in the third quarter of 2015, the parties came to an agreement in principle to settle the Gallien Litigation on a class-wide basis for $400. On October 28, 2015, the parties executed a Stipulation of Class Action Settlement
(the Gallien Settlement) to document the terms and conditions of the settlement. In connection with the Gallien Settlement and subject to court approval, the settlement is based on claims made with a specific reversion of funds paid back
to us, depending on the number of claims made by settlement class members for individual settlement payments. Under the terms specified in the Gallien
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Settlement, 55% of a net settlement amount of approximately $204 must be paid to settlement class members in the form of individual settlement payments. In the event the settlement is not
approved by the court or otherwise does not become effective, we intend to continue to defend ourselves vigorously against the allegations made in the amended complaint. On March 11, 2016, the court entered an order preliminarily approving the
Gallien Settlement and scheduled a hearing for June 23, 2016 to consider final approval of the Gallien Settlement.
On May 12,
2015, the SEC filed a civil enforcement action against us, our Chief Executive Officer, Kevin M. Modany, and our former Chief Financial Officer, Daniel M. Fitzpatrick, in the United States District Court for the Southern District of Indiana under
the following caption:
United States Securities and Exchange Commission v. ITT Educational Services, Inc., Kevin M. Modany and Daniel M. Fitzpatrick
(the SEC Litigation). As we previously disclosed, we received several SEC
subpoenas beginning on February 8, 2013. The SECs subpoenas requested the production of documents and communications that, among other things, relate to our actions, disclosures, and accounting associated with the CUSO Program and the
PEAKS Program. We provided the information requested, including testimony of senior employees. On August 7, 2014, we received a Wells Notice from the Staff of the SEC notifying us that the Staff had made a preliminary determination
to recommend that the SEC file an enforcement action against us. According to the Staff, the enforcement action would allege violations of Sections 10(b), 13(a) and 13(b)(2) of the Exchange Act and Rules 10b-5, 12b-20, 13a-1, 13a-11, 13a-13 and
13a-15 under the Exchange Act. Under the SECs procedures, a recipient of a Wells Notice has an opportunity to respond in the form of a Wells submission that seeks to persuade the SEC that such an action should not be brought. We made
submissions to the Staff in response to the Wells Notice we received that set forth why the factual record does not support the enforcement action recommended by the Staff and explained that any of our perceived shortcomings were acts taken in good
faith. Our Chief Executive Officer and former Chief Financial Officer each made similar submissions.
The SEC Litigation relates to the
matters addressed in the Wells Notice that we received, and the complaint alleges violations of Sections 10(b), 13(a) and 13(b)(2) of the Exchange Act; Rules 10b-5, 12b-20, 13a-1, 13a-11 and 13a-13 under the Exchange Act; and Section 17(a) of
the Securities Act. Among other assertions, the complaint alleges that we engaged in a fraudulent scheme and course of business and made various false and misleading statements to our investors relating to the CUSO Program and the PEAKS Program. The
remedies sought by the SEC in the complaint include:
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a finding that each of the defendants committed the alleged violations;
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an injunction permanently restraining and enjoining each of the defendants from violating, directly or indirectly, the laws and rules alleged in the complaint;
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an order that Messrs. Modany and Fitzpatrick be permanently prohibited from acting as an officer or director of any public company;
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disgorgement of any and all ill-gotten gains, together with pre- and post-judgment interest, derived from the improper conduct alleged in the complaint;
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civil money penalties pursuant to Section 20(d) of the Securities Act and Section 21(d) of the Exchange Act in an amount to be determined by the court, plus post-judgment interest;
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an order that Messrs. Modany and Fitzpatrick reimburse us for all bonuses, incentive-based and equity-based compensation, and/or profits realized from their sale of our stock pursuant to Section 304 of the
Sarbanes-Oxley Act of 2002; and
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such other relief as the court may deem just or appropriate.
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On July 17, 2015, we filed
our answer in the SEC Litigation in which we denied all of the SECs claims.
We intend to defend ourselves vigorously against the
claims in the SEC Litigation. Nevertheless, we cannot predict the outcome of any legal action or whether the matter will result in any settlement. We cannot assure you that the ultimate outcome of the SEC Litigation or any settlement will not have a
material adverse effect on our financial condition, results of operations and/or cash flows.
In September 2015, we received a Civil
Investigative Demand (CID) from the U.S. Department of Justice (DOJ). The CID provides that the purpose of the investigation is to determine whether there is or has been a violation of the False Claims Act and whether we
knowingly submitted false statements in violation of the EDs Program Participation Agreement regulations. The CID contained requests for production of documents and answers to interrogatories that we believe are principally related to our
compliance with the EDs compensation regulations and was related to a sealed qui tam action. We believe that our practices with respect to compensation matters are in compliance with applicable laws and regulations, and we cooperated with the
DOJ in responding to the CID. On January 15, 2016, the United States District Court for the Middle District of Florida issued an order unsealing the underlying qui tam case, revealing that the DOJ has declined to intervene in the qui tam
action. Accordingly, the DOJ has closed its investigation. The court also ordered that the qui tam False Claims Act complaint, which was filed by a former disgruntled employee, be served on defendants ITT Educational Services, Inc. and ITT Technical
Institute. The qui tam action was filed on April 8, 2015 in the United States District Court for the Middle District of Florida under the following caption:
United States of America ex rel. Rodney Lipscomb v. ITT Educational Services, Inc.
(the Lipscomb Litigation). The relator alleges in the complaint, among other things, that we received Title IV federal financial aid in violation of various Title IV condition of payment rules and regulations and thereby violated the
False Claims Act, 31 U.S.C. §3729, et. seq., by:
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enrolling students who were unlikely to succeed;
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improperly pressuring students to enroll;
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misrepresenting our credit transfer policy to students;
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misrepresenting our curriculum and graduate employment opportunities to students;
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changing, refusing to explain, and misrepresenting students financial obligations;
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offering improper promotions and compensation incentives to admissions representatives based on the number of students they enrolled; and
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fabricating graduate placement rate reports.
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The relator also alleges that we retaliated against him and
violated the False Claims Act by terminating his employment after he allegedly reported illegal and unethical practices to our management.
The relator seeks various forms of recovery on behalf of himself and the federal government, including treble damages and civil penalties; the
maximum amount pursuant to 31 U.S.C. §3730(d); the maximum amount pursuant to 31 U.S.C. §3730(h), including two times back pay; interest; expenses; attorneys fees; and costs. On April 11, 2016, the complaint was served on us. We
vehemently deny the allegations in the qui tam action and intend to vigorously defend ourself against these claims.
On October 30,
2012, we received a CID from the Massachusetts Office of the Attorney General (MAG). The MAGs CID provides that the MAG is investigating allegations that we may have violated Massachusetts General Laws, Chapter 93A,
Section 2(a), by engaging in unfair or deceptive practices in connection with marketing and advertising job placement and student outcomes, the recruitment of students, and the financing of education. The MAG has since requested
additional information from us, including through two follow up CIDs. The MAGs CID contains broad requests for production of documents related to our students in Massachusetts, including the financial aid available to those students, our
recruitment of those students, the career services that we offer to those students, our marketing and advertising, the retention and graduation rates of those students and many other aspects of our business. We have cooperated with the MAG in its
investigation, and we have provided documentation, communications and other information to the MAG in response to the CID.
On
March 31, 2016, the MAG filed a civil complaint against us in the Norfolk County (Massachusetts) Superior Court (the Massachusetts Litigation). On April 6, 2016, the MAG served that complaint on us. The complaint alleges that
we violated the Massachusetts Consumer Protection Act, M.G.L. c.93A §2 with respect to our Computer Network Systems program, by, among other things and without limitation:
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engaging in unfair and harassing sales tactics, including placing undue pressure on Massachusetts consumers and prospective students to enroll;
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making false and/or misleading representations to prospective students concerning placement rates, wages and salaries, and the nature, character and quality of the program and instruction; and
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unfairly steering Massachusetts student borrowers to expensive private loans.
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The complaint seeks:
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permanent injunctive relief;
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civil penalties of $5 per violation; and
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costs, including reasonable attorneys fees.
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We intend to defend ourselves vigorously against the
allegations made in the complaint.
Kevin M. Modany and Daniel M. Fitzpatrick are named in the New York Securities Litigation, Indiana
Securities Litigation, Wilfred Litigation, Lawrence Litigation, McKee Litigation, Canfield Litigation and SEC Litigation. John E. Dean is also named in the Wilfred Litigation, Lawrence Litigation, McKee Litigation, and Canfield Litigation.
There can be no assurance that the ultimate outcome of the Leveski Litigation, Wilfred Litigation, Lawrence Litigation, McKee Litigation,
Canfield Litigation, CFPB Litigation, New Mexico Litigation, Gallien Litigation, SEC Litigation, Lipscomb Litigation, Massachusetts Litigation, or other actions (including other actions under federal or state securities laws) will not have a
material adverse effect on our financial condition, results of operations or cash flows.
Certain of our current and former officers and Directors are or may become a party in the actions described above and/or are or may become
subject to government investigations. Our By-laws and Restated Certificate of Incorporation obligate us to indemnify our officers and Directors to the fullest extent permitted by Delaware law, provided that their conduct complied with certain
requirements. We are obligated to advance defense costs to our officers and Directors, subject to the individuals obligation to repay such amount if it is ultimately determined that the individual was not entitled to indemnification. In
addition, our indemnity obligation can, under certain circumstances, include indemnifiable judgments, penalties, fines and amounts paid in settlement in connection with those actions and investigations.
Government Investigations.
We are subject to investigations and claims of non-compliance with regulatory standards and other
actions brought by regulatory agencies. The more significant pending investigations, claims and actions are described below. If the results of any investigations, claims and/or actions are unfavorable to us, we may be required to pay money damages
or be subject to fines, penalties, injunctions, operational limitations, loss of eligibility to participate in federal or state financial aid programs, debarments, additional oversight and reporting, or other civil and criminal sanctions. Those
sanctions could have a material adverse effect on our financial condition, results of operations and cash flows.
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In January, February, April and May 2014, and in February, March and June 2015 we received
subpoenas and/or CIDs from the Attorneys General of Arkansas, Arizona, Colorado, Connecticut, District of Columbia, Hawaii, Idaho, Iowa, Kentucky, Maryland, Minnesota, Missouri, Nebraska, North Carolina, Oregon, Pennsylvania, Tennessee and
Washington under the authority of each states consumer protection statutes. The Attorney General of the Commonwealth of Kentucky has informed us that it will serve as the point of contact for the multistate group to respond to questions
relating to the subpoenas and CIDs. The subpoenas and CIDs contain broad requests for information and the production of documents related to our students and practices, including marketing and advertising, recruitment, financial aid, academic
advising, career services, admissions, programs, licensure exam pass rates, accreditation, student retention, graduation rates and job placement rates, as well as many other aspects of our business. We believe that several other companies in the
proprietary postsecondary education sector have received similar subpoenas and CIDs. We are cooperating with the Attorneys General of the states involved. The ultimate outcome of the state Attorneys General investigation, however, could have a
material adverse effect on our financial condition, results of operations and/or cash flows.
On April 1, 2016, we received a letter
from the SEC requesting that we supply information voluntarily to the SEC. In the letter, the SEC states that it is conducting an inquiry of trading in our securities to determine if violations of the federal securities laws have occurred. The
SECs letter requests the voluntary production of communications and other documents that relate to, among other things, our October 16, 2014 filing of our Annual Report on Form 10-K for the fiscal year ended December 31, 2013, and
our May 29, 2015 filing of our Annual Report on Form 10-K for the fiscal year ended December 31, 2014. We are cooperating with the SEC in its inquiry, and we have provided documents and other information to the SEC in response to its
requests, including our insider trading policies and information regarding individuals who were aware in advance of our filing of our 2013 Form 10-K and our 2014 Form 10-K. There can be no assurance, however, that the ultimate outcome of
the SEC inquiry will not have a material adverse effect on our financial condition, results of operations and/or cash flows.
12.
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Risks and Uncertainties
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Many of the amounts of assets, liabilities, revenue and expenses reported in our consolidated financial statements are based
on estimates and assumptions that affect the amounts reported. We are subject to risks and uncertainties that could affect amounts reported in our consolidated financial statements in future periods. Our future performance, results of
operations, financial condition, cash flows, liquidity, capital resources, ability to meet our obligations and ability to comply with covenants, metrics and regulatory requirements are subject to significant risks and uncertainties that could cause
actual results to be materially different from our estimated results. Those significant risks and uncertainties include, but are not limited to, the following:
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The PEAKS Consolidation and CUSO Consolidation, which have and could negatively impact our compliance with:
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the EDs financial responsibility measurements, primarily our institutions composite score;
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the financial requirements of certain state education and professional licensing authorities (SAs); and
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the financial metrics to which we are subject under the PEAKS Program and the CUSO RSA.
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See
Note 5 Variable Interest Entities, Note 8 Debt and Note 11 Commitments and Contingencies, for additional information.
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Our institutions failure to submit their 2013 audited consolidated financial statements and 2013 Compliance Audits to the ED by the due date resulted in sanctions imposed by the ED on our institutions that
include, among other things, our institutions having to submit a letter of credit, being placed on heightened cash monitoring (HCM) and being provisionally certified. We caused the ED Letter of Credit to be issued on October 31,
2014, but it has subsequently been replaced by the ED Agreement. The term of the ED Agreement ends on November 4, 2019. Pursuant to the ED Agreement, $79,708 was held in an escrow account by the ED as of March 31, 2016. The funds held are
not available for use by us, and could be used by the ED if certain conditions are met. See Note 11 Commitments and Contingencies for additional information. An institution that is provisionally certified by the ED must apply for and receive
approval from the ED for any substantial change, before the institution can award, disburse or distribute Title IV Program funds based on the substantial change. Substantial changes generally include, but are not limited to:
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the establishment of an additional location;
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an increase in the level of academic offering beyond those listed in the institutions Eligibility and Certification Approval Report with the ED;
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an addition of any non-degree program or short-term training program; or
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an addition of a degree program by a proprietary institution.
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On October 19, 2015, we received a letter from the ED identifying additional procedures that we are required
to implement as a result of the identification of certain past deficiencies. These additional procedures have resulted in the delay of our receipt of Title IV Program funds. While these additional procedures have affected the timing of our receipt
of Title IV Program funds and have imposed an administrative burden on us, we do not expect them to have a significant negative effect on our overall cash flow or operations, but we cannot assure you that there will not be future delays in our
institutions receipt of Title IV Program funds. The letter also states that we are required to provide certain additional information and reporting to
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the ED on a regular basis. We have implemented, and are in the process of implementing, measures to comply with the EDs requirements. We have been submitting the additional information to
the ED, and intend to continue submitting information to the ED according to the schedule specified by the ED.
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We are subject to various claims and contingencies, including those related to litigation, government investigations, business transactions, tax matters and employee-related matters, among others. See Note 11
Commitments and Contingencies, for a further discussion of certain litigation and government investigations to which we are subject.
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We have significant guarantee obligations under the PEAKS Guarantee and the CUSO RSA (collectively, the RSAs). In 2015, we made payments of approximately $30,090 under the PEAKS Guarantee, and approximately
$13,093, net of $521 of recoveries owed to us that we offset against amounts that we owed to the CUSO, related to the CUSO RSA. Based on various assumptions, including the historical and projected performance and collection of the PEAKS Trust
Student Loans, we believe that we will make payments under the PEAKS Guarantee of approximately $11,200 in 2016 and approximately $600 in 2017. In addition, based upon various assumptions, including the historical and projected performance and
collections of the private education loans under the CUSO Program, we believe that we will make payments under the CUSO RSA, net of recoveries, of approximately $16,200 in 2016 and $12,000 in 2017. See Note 8 Debt and Note 11
Commitments and Contingencies for a further discussion of the RSAs and estimated payment amounts.
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We have principal payments due under the Financing Agreement of $50,505 during the period April 1, 2016 through December 31, 2016.
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We had negative working capital as of March 31, 2016, December 31, 2015 and March 31, 2015.
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On April 20, 2016, the accrediting agency which accredits our ITT Technical Institute institutions informed us that, based on its review, the ITT Technical Institutes have not demonstrated compliance with certain
accreditation standards. As a result, we must show cause why the ITT Technical Institutes accreditation should not be withdrawn by suspension or otherwise conditioned. We believe that the ITT Technical Institutes are in compliance with all
accreditation standards, however, if the ITT Technical Institutes ultimately were to lose their accreditation, they would lose their eligibility to participate in Title IV Programs, in which case we likely would not be able to continue to operate
our business.
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Based on our current projections, we believe that cash generated from operations will be sufficient for us to
satisfy our payment obligations under the RSAs, working capital, loan repayment and capital expenditure requirements over the 12-month period following the date that this Quarterly Report on Form 10-Q was filed with the SEC. We also believe
that any reduction in cash and cash equivalents that may result from their use to make payments under the RSAs or repay loans will not have a material adverse effect on our planned capital expenditures, ability to meet any applicable regulatory
financial responsibility standards, ability to satisfy the financial covenants under the Financing Agreement or ability to conduct normal operations over the 12-month period following the date that this Quarterly Report on Form 10-Q was filed
with the SEC. Accordingly, our consolidated financial statements contained in this Quarterly Report on Form 10-Q were prepared on the basis that we will continue to operate as a going concern. There can be no assurance, however, that the
ultimate outcome of those events, whether individually or in the aggregate, will not have a material adverse effect on our financial condition, results of operations or cash flows.