Contract
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Exhibit 10.18 TIME-SHARING AGREEMENT This Time-Sharing Agreement (the “Agreement”) is made and entered into as of March 4, 2019 (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-1-1A10 (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; H. Passenger ground transportation; {00052851 5 } 1
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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
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To Lessor at: APX Group, Inc. 0000 Xxxxx 000 Xxxx Xxxxx, Xxxx 00000 Attn: Xxxxx Xxxxxxxxx, Chief Legal Officer Xxxx X. Xxxxxx, SVP, Finance & Treasurer To Lessee at: _________________ 0000 Xxxxx 000 Xxxx Xxxxx, Xxxx 00000 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 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 {00052851 5 } 5
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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, XXXX X. XXXXXX, 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 0000 XXXXX 000 XXXX, XXXXX, XXXX 00000. {00052851 5 } 7