AMENDED AND RESTATED TRADEMARK SECURITY AGREEMENT
Exhibit 10.22
Execution Version
AMENDED AND RESTATED TRADEMARK SECURITY AGREEMENT
This AMENDED AND RESTATED TRADEMARK SECURITY AGREEMENT (this “Trademark Security Agreement”) is entered into as of June 22, 2015 (the “Execution Date”) , but is effective as of June 1, 2015 (the “Effective Date”), by and among Grantors listed on the signature pages hereof (collectively, jointly and severally, “Grantors” and each individually “Grantor”), and U.S. BANK NATIONAL ASSOCIATION, a national banking association, in its capacity as Agent (as defined in the Security Agreement (defined below)).
W I T N E S S E T H:
WHEREAS, pursuant to that certain Indenture dated as of June 1, 2015 (as amended, restated, supplemented, or otherwise modified from time to time, the “Indenture”) by and among FTS INTERNATIONAL, INC., a Delaware corporation (“Issuer,”), the guarantors party thereto and U.S. Bank National Association, as trustee, the Issuer issued $350,000,000 aggregate principal amount of Senior Secured Notes due 2020;
WHEREAS, each Grantor has agreed, under that certain Security Agreement dated as of June 1, 2015 (the “Security Agreement”), to grant to Agent, for the benefit of the Trustee, the Agent and the holders (“Holders”) from time to time of the Notes and each Bank Product Provider (collectively, the “Secured Parties”), a continuing security interest in and to the Collateral in order to secure the prompt and complete payment, observance and performance of, among other things, the Secured Obligations);
WHEREAS, pursuant to the Security Agreement, Grantor executed and delivered to Agent, for the benefit of the Secured Parties, the Trademark Security Agreement, dated June 1, 2015 (the “Existing Trademark Security Agreement”); and
WHEREAS, pursuant to the Security Agreement, Grantor is executing and delivering to Agent, for the benefit of the Secured Parties, this Amended and Restated Trademark Security Agreement to amend and restate the terms of the Existing Trademark Security Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Grantor hereby agrees as follows:
1. DEFINED TERMS. All initially capitalized terms used but not otherwise defined herein have the meanings given to them in the Security Agreement or, if not defined therein, in the Indenture, and this Trademark Security Agreement shall be subject to the rules of construction set forth in Section 1(b) of the Security Agreement, which rules of construction are incorporated herein by this reference, mutatis mutandis.
2. GRANT OF SECURITY INTEREST IN TRADEMARK COLLATERAL. Each Grantor hereby unconditionally grants, assigns, and pledges to Agent, for the benefit of the Secured Parties, to secure the Secured Obligations, a continuing security interest (referred to in this Trademark Security Agreement as the “Security Interest”) in all of such Grantor’s right, title and interest in and to the following, whether now owned or hereafter acquired or arising (collectively, the “Trademark Collateral”):
(a) all of its Trademarks, Intellectual Property and Intellectual Property Licenses to which it is a party including those referred to on Schedule I;
(b) all goodwill of the business connected with the use of, and symbolized by, each Trademark and each Intellectual Property License, and
(c) all products and proceeds (as that term is defined in the Code) of the foregoing, including any claim by such Grantor against third parties for past, present or future (i) infringement or dilution of any Trademark or any Trademarks exclusively licensed under any Intellectual Property License, including right to receive any damages, (ii) injury to the goodwill associated with any Trademark, or (iii) right to receive license fees, royalties, and other compensation under any Intellectual Property License, in each case, to the extent that such property constitutes Collateral.
3. SECURITY FOR SECURED OBLIGATIONS. This Trademark Security Agreement and the Security Interest created hereby secures the payment and performance of the Secured Obligations, whether now existing or arising hereafter. Without limiting the generality of the foregoing, this Trademark Security Agreement secures the payment of all amounts which constitute part of the Secured Obligations and would be owed by Grantors, or any of them, to the Secured Parties, or any of them, whether or not they are unenforceable or not allowable due to the existence of a case or proceeding under any applicable Bankruptcy Law involving any Grantor.
4. SECURITY AGREEMENT. The Security Interest granted pursuant to this Trademark Security Agreement is granted in conjunction with the security interests granted to Agent, for the benefit of the Secured Parties, pursuant to the Security Agreement. Each Grantor hereby acknowledges and affirms that the rights and remedies of Agent with respect to the Security Interest in the Trademark Collateral made and granted hereby are more fully set forth in the Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. To the extent there is any inconsistency between this Trademark Security Agreement and the Security Agreement, the Security Agreement shall control.
5. AUTHORIZATION TO SUPPLEMENT. If any Grantor shall obtain rights to any new trademarks, the provisions of this Trademark Security Agreement shall automatically apply thereto. Grantors shall give prompt notice in writing to Agent with respect to any such new trademarks or renewal or extension of any trademark registration. Without limiting Grantors’ obligations under this Section, Grantors hereby authorize Agent unilaterally to modify this Trademark Security Agreement by amending Schedule I to include any such new trademark rights of each Grantor concerning which Agent shall have received the notice referenced in the preceding sentence. Notwithstanding the foregoing, no failure to so modify this Trademark Security Agreement or amend Schedule I shall in any way affect, invalidate or detract from Agent’s continuing security interest in all Collateral, whether or not listed on Schedule I.
6. COUNTERPARTS. This Trademark Security Agreement is a Indenture Document. This Trademark Security Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Trademark Security Agreement. Delivery of an executed counterpart of this Trademark Security Agreement by telefacsimile or other electronic method of transmission shall be equally as effective as delivery of an original executed counterpart of this Trademark Security Agreement. Any party delivering an executed counterpart of this Trademark Security Agreement by telefacsimile or other electronic method of transmission also shall deliver an original executed counterpart of this Trademark Security Agreement but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Trademark Security Agreement.
7. CHOICE OF LAW AND VENUE, JURY TRIAL WAIVER, AND JUDICIAL REFERENCE PROVISION. THIS TRADEMARK SECURITY AGREEMENT SHALL BE SUBJECT
TO THE PROVISIONS REGARDING CHOICE OF LAW AND VENUE, JURY TRIAL WAIVER, AND JUDICIAL REFERENCE SET FORTH IN SECTION 25 OF THE SECURITY AGREEMENT, AND SUCH PROVISIONS ARE INCORPORATED HEREIN BY THIS REFERENCE, MUTATIS MUTANDIS.
8. AMENDMENT AND RESTATEMENT. This Trademark Security Agreement is an amendment and restatement of the Existing Trademark Security Agreement. All terms and provisions of this Trademark Security Agreement supersede, and amend and restate, in their entirety the Existing Trademark Security Agreement, except for (a) the Secured Obligations (as defined in the Existing Trademark Security Agreement) which shall survive and be renewed, extended, amended and restated by the terms of this Trademark Security Agreement and (b) the liens and security interests in the Trademark Collateral (as defined in the Existing Trademark Security Agreement) and any other assets or property of Grantor that were created, granted and/or perfected by the Existing Trademark Security Agreement or any other Indenture Documents, all of which liens and security interests shall continue and remain valid, binding and enforceable liens and security interests in the Trademark Collateral and such other assets and property.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Trademark Security Agreement to be executed and delivered as of the Execution Date, but effective as of the Effective Date.
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GRANTORS: |
FTS INTERNATIONAL SERVICES, LLC, | |
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a Texas limited liability company, | |
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By: |
/s/ Xxxxxxx X. Xxxx |
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Name: Xxxxxxx X. Xxxx |
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Title: Chief Financial Officer and Treasurer |
[SIGNATURE PAGE TO AMENDED AND RESTATED TRADEMARK SECURITY AGREEMENT]
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ACCEPTED AND ACKNOWLEDGED BY: | |
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AGENT: |
U.S. BANK NATIONAL ASSOCIATION, a national banking association, in its capacity as Agent | |
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By: |
/s/ Xxxxxx Xxxx |
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Name: Xxxxxx Xxxx |
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Title: Assistant Vice President |
[SIGNATURE PAGE TO AMENDED AND RESTATED TRADEMARK SECURITY AGREEMENT]
SCHEDULE I
to
TRADEMARK SECURITY AGREEMENT
UNITED STATES TRADEMARKS
U.S. Registrations:
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Owner |
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Registration Number |
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Description |
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FTS International Services, LLC |
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4416031 |
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Aquacor (design in blue) (International Classes 009 & 040) |
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FTS International Services, LLC |
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4416030 |
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Aquacor (International Classes 009 & 040) |
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FTS International Services, LLC |
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4054905 |
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CHL |
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FTS International Services, LLC |
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3497579 |
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CITRINE |
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FTS International Services, LLC |
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3322250 |
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CS-POLYBREAK 210 |
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FTS International Services, LLC |
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4636429 |
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DIAMOND |
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FTS International Services, LLC |
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4451132 |
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DIAMOND design |
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FTS International Services, LLC |
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4189683 |
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ECO GREEN |
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FTS International Services, LLC |
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4675488 |
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ENERGIZE YOUR CAREER |
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FTS International Services, LLC |
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4151986 |
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ENERGY SOLUTIONS. WORLDWIDE. |
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FTS International Services, LLC |
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4193471 |
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“F” (shield design) |
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FTS International Services, LLC |
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4193472 |
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“F” (shield design in color) |
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FTS International Services, LLC |
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4185461 |
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“F” (stylized design) |
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FTS International Services, LLC |
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4204838 |
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“F” (stylized design in color) |
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FTS International Services, LLC |
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4313998 |
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F FTS INTERNATIONAL (horizontal design plus words) |
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FTS International Services, LLC |
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4318050 |
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F FTS INTERNATIONAL (horizontal design plus words in color) |
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FTS International Services, LLC |
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4313999 |
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F FTS INTERNATIONAL (vertical design plus words) |
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FTS International Services, LLC |
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4314000 |
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F FTS INTERNATIONAL (vertical design plus words in color) |
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FTS International Services, LLC |
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4636479 |
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F FTS INTERNATIONAL Unconventional by Design (horizontal design plus words) |
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FTS International Services, LLC |
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4011448 |
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FRAC TECH |
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FTS International Services, LLC |
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3522979 |
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FT Frac Tech (logo & design) |
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FTS International Services, LLC |
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4313997 |
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FTS INTERNATIONAL |
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FTS International Services, LLC |
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4471425 |
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FTS INTERNATIONAL MANUFACTURING |
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FTS International Services, LLC |
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4329229 |
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FTS INTERNATIONAL PROPPANTS |
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FTS International Services, LLC |
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4332747 |
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FTS INTERNATIONAL SERVICES |
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Owner |
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Registration Number |
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Description |
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FTS International Services, LLC |
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4388204 |
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FTS INTERNATIONAL WIRELINE |
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FTS International Services, LLC |
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4332750 |
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FTSI |
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FTS International Services, LLC |
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4290177 |
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FTSI PROPPANTS |
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FTS International Services, LLC |
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3437249 |
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JADE |
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FTS International Services, LLC |
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4214082 |
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NPD |
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FTS International Services, LLC |
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4108769 |
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NPD-2000 |
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FTS International Services, LLC |
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4177022 |
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NPD-3000 |
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FTS International Services, LLC |
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3428709 |
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OPAL |
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FTS International Services, LLC |
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4210164 |
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PFP |
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FTS International Services, LLC |
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3393387 |
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PLATINUM |
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FTS International Services, LLC |
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3383301 |
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RUBY |
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FTS International Services, LLC |
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4159362 |
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SLICKWATER GREEN |
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FTS International Services, LLC |
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4159141 |
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SW-GREEN |
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FTS International Services, LLC |
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3393386 |
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TURQUOISE |
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FTS International Services, LLC |
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4018863 |
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VS (design) |
U.S. Applications:
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Owner |
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Application |
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Description |
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FTS International Services, LLC |
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86/536,238 |
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Aquacor (design) |
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FTS International Services, LLC |
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86/536,206 |
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Aquacor |
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FTS International Services, LLC |
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86/314,435 |
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JobPilot |
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FTS International Services, LLC |
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86/422,348 |
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JobPilot (design) |
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FTS International Services, LLC |
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86/436,112 |
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NuFlo |
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FTS International Services, LLC |
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86/469,748 |
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Unconventional by Design (word) |
