a1031apxgroupincformofti






                                                                    Exhibit 10.31                                                                TIME-SHARING AGREEMENT            This  Time-Sharing  Agreement (the  “Agreement”)  is  made  and  entered  into  as  of  ____________  (the  “Effective  Date”),  by  and  between  APX  Group,  Inc.,  a  Delaware  corporation  (“Lessor”)  and  _____________,  an  individual  (“Lessee”),  and  is  made  and  entered into with reference to the following facts and objectives:                                    RECITALS          A.    WHEREAS,  Lessor  operates  that  certain  aircraft  identified  as  a  Bombardier  Inc. model BD-100-1A10 (Challenger 300) aircraft, Serial Number 20365, U.S. Registration  Number  N313V  (collectively,  the  “Aircraft”)  under  Part  91  of  the  Federal  Aviation  Regulations (“FAR”); and          B.    WHEREAS,  Lessor  has  heretofore  engaged  a  fully  qualified  flight  crew  to  operate the Aircraft; and          C.    WHEREAS,  Lessee  desires  to  make  the  Aircraft  available  to  Lessee,  and  Lessee  desires  to  utilize  the  Aircraft,  on  a  time-sharing  basis,  as  defined  in  Sections  91.501(b)(6), (c)(1) and (d) of the FAR.          NOW, THEREFORE, for and in consideration of the mutual promises, covenants and  conditions herein set forth, Lessor and Lessee agree as follows:          1.    Lease of Aircraft; Term of Lease.  Lessor agrees to provide the Aircraft to and  operate the Aircraft for Lessee on a non-exclusive basis, pursuant to the provisions of FAR  91.501(c)(1),  and  to  provide  a  fully  qualified  flight  crew  for  all  operations  for  the  period  commencing  on  the  Effective  Date  of  this  Agreement  and  terminating  on  the  date  that  is  three (3) calendar years from the Effective Date (the “Term”); provided, however, that either  party may terminate this Agreement upon thirty (30) days written notice to the other party of  its election to terminate the Agreement.          2.    Lessee’s  Payment  Obligations.   Lessee  shall  pay  Lessor  for  each  flight  conducted  under  this  Agreement  the  aggregate  incremental cost  of  each  specific  flight,  provided,  however,  such  cost  shall  in  no  event  exceed  the  sum  of  the  following  expenses  authorized by FAR Part 91.501(d);                      A.    Fuel, oil, lubricants, and other additives;                            B.    Travel  expenses  of  the  crew,  including  food,  lodging  and  ground                    transportation;                            C.    Hangar and tie down costs away from the Aircraft’s base of operation;                            D.    Insurance obtained for the specific flight;                            E.    Landing fees, airport taxes and similar assessments including, but not                    limited to IRC Section 4261 and related excise taxes;                            F.    Customs, foreign permit, and similar fees directly related to the flight;                            G.    In-flight food and beverages;   {00052851 5 }                      1  





 






                             H.    Passenger ground transportation;                            I.    Flight planning and weather contract services; and                            J.    An  additional  charge  equal  to  100%  of  the  expenses  listed  in                    subparagraph (A) of this paragraph.          3.    Invoicing  for  Flights.   Within  ten  (10)  days  of  completion  of  each  flight,  Lessor  will  provide  Lessee  with  a  statement  of  expenses  set  forth  in  Paragraph  2  above,  related  to  the  operation  of  the  Aircraft  for  each  specific  flight.   Lessor  shall  also  provide  Lessee with a monthly statement within ten (10) days after the end of each month, which  shall  contain  the  expenses  set  forth  in  Paragraph  2  above  for  Lessee’s  flights  occurring  during  the  prior  month.   Within  ten  (10)  days  after  the  end  of  each  quarter,  Lessor  shall  provide Lessee with an invoice for the amount due from Lessee for any unpaid expenses set  forth  in  Paragraph  2  above  incurred  during  the  quarter.   Lessee  shall  pay  Lessor for  the  unpaid balance of said expenses within 10 days of receipt of the quarterly invoice therefor.                  4.    Request for Flights by  Lessee. Lessee will provide  Lessor  with requests for  flight time and proposed flight schedules as far in advance of any given flight as possible.   Requests for flight time shall be in a form, whether written or oral, mutually convenient to,  and  agreed upon by the parties,  and shall  contain such  information as  shall  be reasonably  requested by Lessor.                  5.    Scheduling Flights.  Lessor shall have final authority over the scheduling of  the  Aircraft.  Lessor  shall  be  responsible  for  the  physical  and  technical  operation  of  the  aircraft  and  the  safe  performance  of  all  flights  and  shall  retain  full  authority  and  control,  including exclusive operational control, and possession of the Aircraft at all times during the  Term of this Agreement.          6.    Additions  and  Alterations.  Lessee  shall  not  in  any  way  alter  or  modify,  or  cause to be made alterations or modifications to the Aircraft or any of its component parts,  including without limitation its engines, APU or avionics.                7.    Maintenance of Aircraft.  Lessor shall be solely responsible for performing or  arranging for the performance of all scheduled and unscheduled maintenance or preventive  maintenance  and  shall  cause  to  be  performed  all  required  or  necessary  inspections  on  the  Aircraft, and shall  take all such requirements into  account in  scheduling the  Aircraft.  No  period of maintenance, preventative maintenance or inspection shall be delayed or postponed  for  the  purpose  of  scheduling  the  Aircraft,  unless  said  maintenance  or  inspection  can  be  safely conducted at a later time in compliance with all applicable laws and regulations, and  within the sound discretion of the pilot in command.  The pilot in command shall have final  and complete authority to cancel any flight for any reason or condition, which in his or her  judgment would compromise the safety of the flight.          8.    Flight  Crew.   Lessor  shall  engage  a  qualified  flight  crew  for  each  flight  undertaken under this Agreement.                9.    Safety  of  Flights.   In  accordance  with  applicable  FAR,  the  qualified  flight  crew provided by Lessor will exercise all of its duties and responsibilities in regard to the  safety of each flight conducted hereunder.  Lessee specifically agrees that the flight crew, in  its  sole  discretion,  may  terminate  any flight, refuse  to  commence  any  flight, or  take  other  action,  which  in  the  considered  judgment  of  the  pilot  in  command  is  necessitated  by  considerations of safety.  No such action of the pilot in command shall create or support any  liability for loss, injury, damage or delay to Lessee or any other person.  The parties further   {00052851 5 }                      2  





 






   agree  that  Lessor  shall  not  be  liable  for  delay  or  failure  to  furnish  the  Aircraft  and  crew  pursuant to this Agreement for any reason whatsoever, including, without limitation, when  such  failure  is  caused  by  government  regulation  or  authority,  mechanical  difficulty,  maintenance  related  issues,  war,  civil  commotion,  strikes  or  labor  disputes,  weather  conditions, or acts of God.  In such event, Lessee shall be invoiced for any legs completed  for Lessee, and Lessor shall not be obligated to provide any replacement transportation for  any legs not completed for Lessee.          10.   No  Lessor  Warranties  or  Representations.  LESSEE  HEREBY  ACKNOWLEDGES  AND  AGREES        THAT,  EXCEPT  AS  SET   FORTH  IN  THIS  AGREEMENT,  THE  LESSOR  HAS  NOT  MADE  ANY  WARRANTY  OR  REPRESENTATION  TO  LESSEE,  EITHER  EXPRESS     OR  IMPLIED,  AS  TO  THE  DESIGN, COMPLIANCE WITH SPECIFICATIONS, OPERATION, OR CONDITION OF,  OR  AS  TO  THE  QUALITY  OF  THE  MATERIAL,  OR   WORKMANSHIP  IN  THE  AIRCRAFT, OR ANY COMPONENT THEREOF, DELIVERED TO THE LESSEE, AND  EXCEPT  AS  SET  FORTH IN  THIS  AGREEMENT,  THE  LESSOR  DOES  NOT  MAKE  ANY  WARRANTY OF MERCHANTABILITY OR  FITNESS OF  THE  AIRCRAFT,         OR  ANY  COMPONENT  THEREOF,  FOR  ANY  PARTICULAR  PURPOSE,  OR  AS  TO  TITLE  TO  THE  AIRCRAFT  OR  ANY  COMPONENT  THEREOF,  OR  ANY  OTHER  REPRESENTATION  OR  WARRANTY,  EXPRESS  OR  IMPLIED,  WITH  RESPECT     TO  THE AIRCRAFT OR ANY COMPONENT THEREOF.          11.   Insurance.  Lessor  shall  be  responsible  for  all  costs  to  maintain  in  effect  throughout  the  Term  insurance  policies  containing  such  provisions  and  providing  such  coverages as Lessor deems reasonably appropriate in its sole and complete discretion.  All  insurance policies shall (i) name Lessee as an additional insured, (ii) not be subject to any  offset  by  any  other  insurance  carried  by  Lessor  or  Lessee,  (iii)  contain  a  waiver  by  the  insurer  of  any  subrogation  rights  against  Lessor  or  Lessee  and  (iv)  insure  the  interest  of  Lessee regardless of any breach or violation by the Lessor or by any other person (other than  is  solely  attributable  to  the  gross  negligence  or  willful  misconduct  of  Lessee)  or  any  warranty, declaration or condition contained in such policies.                         12.   Representations  of  Lessee.   Lessee  warrants  that  during  the  term  of  this  Agreement:                A.    It shall use the Aircraft for and on account of its own business or non- business use only, and will not use the Aircraft for the purpose of providing transportation of  passengers or cargo in air commerce for compensation or hire;                                  B.    It  shall  refrain  from  incurring  any  mechanics  or  other  lien  in  connection  with  inspection,  preventative  maintenance,  maintenance  or  storage  of  the  Aircraft, whether permissible or impermissible under this Agreement, nor shall there be any  attempt  by  Lessee  to  convey,  mortgage,  assign,  lease  or  any  way  alienate  the  Aircraft  or  create any kind of lien or security interest involving the Aircraft or do anything or take any  action that might mature into such a lien;                                  C.    It  shall  abide  by  and  conform  to  all  such  laws,  governmental  and  airport orders, rules and regulations, as shall from time to time be in effect relating in any  way to the operation and use of the Aircraft by a time-sharing Lessee;                                  D.    It shall not violate, and shall not permit any of his employees, agents,  or  guests to violate,  any applicable law,  regulation  or rule of the  United States, and state,  territory of local authority, or any foreign government or subdivision thereof, and shall not  bring or cause to be brought or carried on board the Aircraft, or permit any employee, agent   {00052851 5 }                      3  





 






   or guest to bring or cause to be brought or carried on board the Aircraft, any contraband or  unlawful articles or substance in any jurisdiction into or over which the Aircraft is to operate  on its behalf.                E.    It shall, and it shall cause its employees, agents and guests to, comply  with all lawful instructions and procedures of Lessor and its agents and employees regarding  the Aircraft, its operation or flight safety; and                F.    Any  proposed  flight  shall  not  require  the  flight  crew  to  exceed  any  flight or duty time limitations that Lessor imposes on its flight crews.                             13.   Aircraft  Base.   For  purposes  of  this  Agreement,  the  permanent  base  of  operation  of  the  Aircraft  shall  be  PVU  in  Provo,  Utah,  or  such  other  location  as  shall  be  determined by Lessor.                14.   No Assignment.  Neither this Agreement nor any party’s interest herein shall  be assignable to any other party whatsoever.  This Agreement shall inure to the benefit of  and be binding upon the parties hereto, their heirs, representatives and successors.                15.   General Provisions.                      A.    Headings.  The headings contained in this Agreement are for reference  purposes  only  and  shall  not  affect  in  any  way  the  construction  of  interpretation  of  this  Agreement.                B.    Partial  Invalidity.  If  any  provision  of  this  Agreement,  or  the  application  thereof  to  any  person,  place  or  circumstance,  shall  be  held  by  a  court  of  competent jurisdiction to be illegal, invalid, unenforceable or void, then such provision shall  be  enforced  to  the  extent  that it  is  not  illegal,  invalid,  unenforceable  or  void,  and  the  remainder of this Lease, as well as such provision as applied to other persons, shall remain in  full force and effect.                C.    Waiver.  With regard to any power, remedy or right provided in this  Agreement or otherwise available to any party, (i) no waiver or extension of time shall be  effective  unless  expressly  contained  in  a  writing  signed  by  the  waiving  party,  (ii)  no  alteration,  modification  or  impairment  shall  be  implied  by  reason  of  any  previous waiver,  extension of time, delay or omission in exercise or other indulgence and (iii) waiver by any  party  of  the  time  for  performance  of  any  act  or  condition  hereunder  does  not  constitute  waiver of the act or condition itself.                D.    Notices.   Any  notice or  other  communication  required  or  permitted  under this Lease shall be in writing, and shall be deemed duly given upon actual receipt, if  delivered personally; or one (1) day following deposit with Federal Express or another next  day delivery provider for next day delivery, if deposited with postage prepaid, and addressed  to such address as may be specified in writing by the relevant party from time to time, and  which shall initially be as follows:        {00052851 5 }                      4  





 






         To Lessor at:                          APX Group, Inc.                          4931 North 300 West                          Provo, Utah 84604                          Attn: Shawn Lindquist, Chief Legal Officer                                Dale R. Gerard, SVP, Finance & Treasurer          To Lessee at:                          _________________                          4931 North 300 West                          Provo, Utah 84604                E.    Utah  Law.  This  Agreement  shall  be  governed  by  and construed  in  accordance with the laws of the State of Utah, regardless of the choice of laws provisions of  Utah or any other jurisdiction.                F.    Entire  Agreement.  This  Agreement  (including  any  exhibits)  constitutes  the  entire  agreement  between  the  parties pertaining  to  the  subject  matter  contained  in  this  Agreement  and  supersedes  any  prior  or  contemporaneous  agreements,  representations and understandings, whether written or oral, of or between the parties with  respect  to the  subject matter  of this  Agreement.  There are  no representations,  warranties,  covenants,  promises  or  undertakings,  other  than  those  expressly  set  forth  or  referred  to  herein.                G.    Amendment.  This  Agreement  may  be  amended  only  by  a  written  agreement signed by all of the parties.                H.    Binding Effect; Assignment.  This Agreement shall be binding on, and  shall  inure  to  the  benefit  of,  the  parties  to  it  and  their  respective  successors  and  assigns;  provided, however, that Lessee may not assign any of its rights under this Agreement and  any such purported assignment shall be null, void and of no effect.                I.    Attorneys’ Fees.  Should any action (including any proceedings in a  bankruptcy  court)  be  commenced  between  any  of  the  parties  to  this  Agreement  or  their  representatives concerning any provision of this Agreement or the rights of any person or  entity  thereunder,  solely  as  between  the  parties  or  their  successors,  the  party  or  parties  prevailing  in  such  action  as  determined  by  the  court  shall  be  entitled  to  recover  from  the  other party all of its costs and expenses incurred in connection with such action (including  without limitation fees, disbursements and expenses of attorneys and costs of investigation).                J.    Remedies Not Exclusive.  No remedy conferred by any of the specific  provisions of this Agreement is intended to be exclusive of any other remedy, and each and  every  remedy  shall  be  cumulative  and  shall  be  in  addition  to  every  other  remedy  given  hereunder  or  now  or  hereafter  existing  at  law  or  in  equity  by  statute  or  otherwise.   The  election of any one or more remedies shall not constitute a waiver of the right to pursue other  remedies.              K.    No Third Party Rights.  Nothing in this Agreement whether express or  implied, is intended to confer any rights or remedies under or by reason of this Agreement on   {00052851 5 }                      5  





 






   any third person or entity, and the parties to this Agreement and their respective successors  and assigns, nor is anything in this Agreement intended to relieve or discharge the obligation  or  liability  of  any  third  persons  or  entities  to  any party  to  this  Agreement,  nor  shall  any  provision give any third person or entity any right of subrogation or action over or against  any party to this Agreement.                L.    Counterparts.  This  Agreement  may  be  executed  in  one  or  more  counterparts, each of which independently shall be deemed to be an original and all of which  together  shall  constitute  one  instrument.   The  parties  may  exchange  executed  copies  transmitted by telecopier, provided the executed originals are forwarded in accordance with  Paragraph 15D hereof.                M.    Expenses.  Each party shall bear all of its own expenses in connection  with the negotiation, execution and delivery of this Agreement.                N.    Broker/Finder  Fees.  Each  party  represents  that  it  has  dealt  with  no  broker or finder in connection with the transaction contemplated by this Agreement and that  no  broker  or  other  person  is  entitled  to  any  commission  or  finder’s  fee  in  connection  therewith.  Lessor and Lessee each agree to indemnify and hold harmless one anther against  any  loss,  liability,  damage,  cost,  claim  or  expense  incurred  by  reason  of  any  brokerage  commission or finder’s fee alleged to be payable because of any act, omission or statement  of the indemnifying party.                O.    Relationship  of  the  Parties.  Nothing  contained  in  this  Agreement  shall  in  any  way  create  any  association,  partnership,  joint  venture,  or  principal  and  agent  relationship  between  the  parties  hereto  or  be  construed  to  evidence  the  intention  of  the  parties to constitute such.                P.    Survival.  All  representations,  warranties,  covenants  and  agreements  contained  in  this  Agreement,  or  in  any  instrument,  certificate,  exhibit,  schedule,  or  other  writing provided for in it, shall survive the expiration or termination of this Agreement.                                                                     [THIS SPACE INTENTIONALLY LEFT BLANK]   {00052851 5 }                      6  





 






                 16. TRUTH IN LEASING STATEMENT PURSUANT TO 14 CFR PART 91.23          THE  AIRCRAFT,  A  BOMBARDIER  INC.  MODEL  BD-1-A10  (CHALLENGER  300),  MANUFACTURER’S  SERIAL  NO.  20365,  CURRENTLY  REGISTERED  WITH  THE  FEDERAL  AVIATION  ADMINISTRATION  AS  N313V,  HAS  BEEN  MAINTAINED  AND   INSPECTED  UNDER  FAR  PART  91  DURING  THE  12  MONTH  PERIOD PRECEDING THE DATE OF THIS AGREEMENT.          APX GROUP, INC. (THE “COMPANY”), CERTIFIES THAT THE AIRCRAFT IS  IN  COMPLIANCE  WITH  ALL  APPLICABLE  MAINTENANCE  AND  INSPECTION  REQUIREMENTS  FOR  OPERATIONS  TO  BE  CONDUCTED  UNDER  THIS  AGREEMENT.  THE AIRCRAFT WILL BE MAINTAINED AND INSPECTED UNDER  FAR  PART  91.409(a)(3)  FOR  OPERATIONS  TO  BE  CONDUCTED  UNDER  THIS  AGREEMENT.            THE COMPANY CERTIFIES AND ACKNOWLEDGES THAT WHENEVER THE  AIRCRAFT IS OPERATED UNDER THIS AGREEMENT, THE COMPANY SHALL BE  KNOWN  AS,  CONSIDERED  AND  SHALL  IN  FACT  BE  RESPONSIBLE  FOR  OPERATIONAL  CONTROL  OF  THE  AIRCRAFT  IDENTIFIED  AND  TO  BE  OPERATED  UNDER  THIS  AGREEMENT.  EACH  PARTY  CERTIFIES  THAT  IT  UNDERSTANDS ITS RESPECTIVE RESPONSIBILITIES, IF ANY, FOR COMPLIANCE  WITH APPLICABLE FEDERAL AVIATION REGULATIONS.            EACH  PARTY  UNDERSTANDS  THAT  AN  EXPLANATION  OF  FACTORS  BEARING  ON  OPERATIONAL  CONTROL  AND  PERTINENT  FEDERAL  AVIATION  REGULATIONS  CAN  BE  OBTAINED  FROM  THE  NEAREST  FAA  FLIGHT  STANDARDS DISTRICT OFFICE.          I,  THE  UNDERSIGNED,  DALE  R.  GERARD,  AS  VP,  FINANCE  AND  TREASURER  OF  THE  COMPANY,  CERTIFY  THAT  THE  COMPANY  IS  RESPONSIBLE  FOR  OPERATIONAL  CONTROL  OF  THE  AIRCRAFT  FOR  OPERATIONS  TO  BE  CONDUCTED  UNDER  THIS  AGREEMENT  AND  THAT  THE  COMPANY  UNDERSTANDS  ITS  RESPONSIBILITIES  FOR  COMPLIANCE  WITH  APPLICABLE FEDERAL AVIATION REGULATIONS.                THE  ADDRESS  OF  THE  COMPANY  IS  4931  NORTH  300  WEST,  PROVO,  UTAH 84601.        {00052851 5 }                      7  





 






                 IN WITNESS WHEREOF, the parties have executed this Agreement effective as of  the date first set forth above.                  LESSOR:                                   LESSEE:    APX Group, Inc.,                      a Delaware corporation,      By:_________________________              _________________________  Name: Dale R. Gerard                      _________________________  Title:  SVP, Finance & Treasurer                    {00052851 5 }                      8