Forbearance Agreement dated October 29, 2019, by and among Key Energy Services, Inc., as borrower, the Lenders party thereto, and Cortland Products Corp., as agent

Exhibit 10.1

CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY

[***], HAS BEEN OMITTED BECAUSE IT IS NOT MATERIAL AND WOULD LIKELY CAUSE

COMPETITIVE HARM TO THE COMPANY IF PUBLICLY DISCLOSED.

EXECUTION VERSION

FORBEARANCE AGREEMENT

This FORBEARANCE AGREEMENT (this “Agreement”), dated as of October 29, 2019, to that certain Term Loan and Security Agreement, dated as of December 15, 2016 (as amended, restated, supplemented or otherwise modified from time to time, the “Term Loan Agreement”), by and among Key Energy Services, Inc., as borrower (“Borrower”), the Lenders party thereto from time to time (collectively, the “Lenders”), and Cortland Products Corp., as Agent (in such capacity, the “Agent”). Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Term Loan Agreement.

RECITALS

WHEREAS, Borrower, the Lenders and the Agent are parties to the Term Loan Agreement;

WHEREAS, Borrower did not make the interest payment due on October 18, 2019 in a timely manner in accordance with the Term Loan Agreement;

WHEREAS, the failure to make such payment has given rise to Events of Default pursuant to Sections 12.1(a) and 12.1(f) of the Term Loan Agreement (collectively, the “Specified Defaults”);

WHEREAS, Borrower has requested that during the Forbearance Period (as hereinafter defined), the Agent and the Lenders party hereto (sometimes referred to herein individually as a “Lender Party,” and collectively as the “Lender Parties”) agree to forbear from exercising any of their Default or Event of Default related rights and remedies against Borrower and the other Loan Parties solely with respect to the Specified Defaults in accordance herewith that would otherwise be exercisable by the Lender Parties but for this Agreement; and

WHEREAS, subject to the terms and conditions set forth herein, the Lender Parties are willing to agree to such a forbearance but only on the terms and conditions contained in this Agreement.

NOW, THEREFORE, in consideration of the foregoing, the terms, covenants and conditions contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

SECTION 1. Confirmation by Borrower of Specified Defaults. Borrower and each other Obligor each acknowledges and agrees that (i) the Specified Defaults constituted Defaults on October 18, 2019 and Events of Default under Sections 12.1(a) and 12.1(f) of the Term Loan Agreement, and (ii) no Events of Default or Defaults (other than the Specified Defaults) have occurred and are continuing as of the date hereof.

SECTION 2. Amounts Owing. Each Obligor acknowledges and agrees that, as of the date hereof, the aggregate principal amount of Loans outstanding under the Term Loan Agreement is $243,125,000.00, plus accrued and unpaid interest and fees thereon. Such Obligations, together with all other outstanding Obligations owing pursuant to the terms of the Loan Documents, including interest, fees, expenses and other charges, are validly owing and are not subject to any right of offset, deduction, claim, or counterclaim in favor of any Obligor.

SECTION 3. Forbearance; Forbearance Default Rights and Remedies.

(a) Effective as of the date hereof, in reliance upon the representations, warranties and covenants of the Obligors contained in this Agreement, and solely upon the terms and subject to the conditions of this Agreement, each of the Lender Parties agrees that until the termination or expiration of the Forbearance Period, such Lender Party will forbear from exercising any of their Default or Event of Default related rights and remedies (whether under the Term Loan Agreement, any other Loan Document, or at law or in equity) against Borrower, any other Obligor or any of their subsidiaries or affiliates solely with respect to the Specified Defaults. As used herein, the term “Forbearance Period” shall mean the period beginning on the date hereof and ending on the earlier of (i) a Forbearance Termination Event (as defined below) and (ii) December 6, 2019; provided that, notwithstanding anything to the contrary herein, the Forbearance Period shall terminate automatically and without notice of termination immediately upon (A) the occurrence of an Event of Default of the type set forth in Section 12.1(h) of the Term Loan Agreement, or (B) the termination or expiration of any other forbearance granted by another creditor pursuant to the ABL Forbearance Agreement (as defined below).

(b) The occurrence of any of the following events or circumstances shall immediately and automatically constitute a termination event with respect to the Forbearance Period (each, a “Forbearance Termination Event”) unless waived by the Agent at the request of Lender Parties representing a majority of the principal amount of Loans held by all of the Lender Parties and outstanding under the Term Loan Agreement within one (1) business day of receipt of notice of such Forbearance Termination Event:

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(c) Upon the expiration or termination of the Forbearance Period, the agreement of the Lender Parties hereunder to forbear from exercising their respective Default or Event of Default related rights and remedies with respect to the Specified Defaults shall immediately terminate without the requirement of any demand, presentment, protest, or notice of any kind, all of which Borrower and the other Obligors each waives. Borrower and the other Obligors each agree that any or all of the Lender Parties may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Term Loan Agreement, any other Loan Document and/or applicable law, including, without limitation, their respective rights and remedies with respect to the Specified Defaults.

(d) Each of the Lender Parties hereby authorizes and requests that the Agent enter into this Agreement.

(e) This Agreement is limited in nature and nothing contained herein is intended, or shall be deemed or construed, to (i) constitute a waiver of any Specified Default or any existing or future Defaults or Events of Default (including any Event of Default arising from the Specified Defaults) or compliance with any term or provision of the Loan Documents or at law or in equity, (ii) establish a custom or course of dealing between the Obligors, on the one hand, and the Agent and/or any Lender Party, on the other hand, or (iii) waive, alter or impair the obligations or any of the rights or remedies of the Agent or the Lender Parties under the Loan Documents, at law or in equity.

(f) For the avoidance of doubt and notwithstanding anything to the contrary in this Agreement or in any Loan Document, to the extent that the Term Loan Agreement or any other Loan Document prohibits, restricts or limits the use of or reliance on any “basket” by any of the Obligors or any of their respective Subsidiaries upon the occurrence and during the continuance of a Default or Event of Default, then, notwithstanding the forbearance provided herein with respect to the Specified Defaults, such prohibition, restriction or limitation shall continue to apply during the Forbearance Period and thereafter so long as the Specified Defaults or any other Default or Event of Default exists, and nothing herein shall be construed as permitting the Obligors or any of their Subsidiaries to take any action that is not permitted to be taken, or have any right not allowed, upon the occurrence and during the continuance of a Default or Event of Default pursuant to the terms of the Loan Documents.

SECTION 4. Effect of Forbearance. For the avoidance of doubt, the Borrower and each other Obligor hereby acknowledges and agrees that this Agreement is a Loan Document. Except as expressly stated herein, the provisions of the Term Loan Agreement and the other Loan Documents have not been modified, are and shall remain in full force and effect in accordance with their terms, and shall constitute and remain as the legal, valid, binding, and enforceable obligations of the Borrower and the other Obligors, all of which are ratified and affirmed in all respects and shall continue in full force and effect. The parties hereto agree that the running of all statutes of limitation and the doctrine of laches applicable to all claims or causes of action that the Agent and/or any Lender may be entitled to take or bring in order to enforce its rights and remedies against the Borrower and/or any Obligor are, to the fullest extent permitted by law, tolled and suspended during the Forbearance Period.

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SECTION 5. Representations and Warranties. To induce the Lenders and the Agent to execute and deliver this Agreement, on behalf of itself and the other Obligors, Borrower hereby represents and warrants to the Lenders and the Agent that:

(a) as of the date hereof, and after giving effect to this Agreement, the representations and warranties set forth in Section 9 of the Term Loan Agreement (other than Sections 9.1.4(b) and 9.1.8, in each case, solely as they relate to the Specified Defaults or the event of default arising under Section 12.1(f) of the ABL Credit Agreement as a result of the Specified Defaults) and in the other Loan Documents shall be true and correct in all material respects (without duplication of any materiality qualifier contained therein) on and as of the date hereof with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date;

(b) immediately before and after giving effect to this Agreement, no Default or Event of Default (other than any Specified Default) has occurred and is continuing;

(c) each of Borrower and each other Obligor has taken all necessary action to authorize the execution, delivery and performance of this Agreement, this Agreement has been duly executed and delivered by each of Borrower and each other Obligor and this Agreement is the legal, valid and binding obligation of each of Borrower and each other Obligor, enforceable against it in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general principles of law; and

(d) other than the Third Party Forbearance Agreement (as defined below) with respect to the ABL Credit Agreement (the “ABL Forbearance Agreement”), as of the date hereof, no Third Party Forbearance Agreements exist.

SECTION 6. Effectiveness. This Agreement shall become effective at the time (the “Agreement Effective Date”) that all of the following conditions precedent have been met:

(a) Agreement. The Agent shall have received duly executed signature pages for this Agreement signed by the Agent, the Lender Parties, Borrower and other Obligors;

(b) Representations and Warranties. The representations and warranties contained in Section 5 shall be true and correct;

(c) ABL Forbearance Agreement. The ABL Forbearance Agreement shall be effective and on terms acceptable to the Lender Parties;

(d) Expenses: (i) The Borrower shall have paid in full to the extent invoiced at least two (2) business days prior to the satisfaction of the condition set forth in Section 6(a) all of the reasonable and documented fees and expenses of (A) Davis Polk as counsel to the Lenders and (B) to the extent then due and payable pursuant to the terms of its fee letter, Perella Weinberg Partners, as financial advisor to the Lender Parties (the “Advisor”); and (ii) each Obligor hereby reconfirms its joint and several obligations pursuant to Section 11.10 of the Term Loan Agreement to pay and reimburse the Agent and the Lender Parties for all reasonable costs and expenses (including, without limitation, the fees of Davis Polk and the Advisor referred to in

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clause (i)(y) above) incurred in connection with the negotiation preparation, execution and delivery of this Agreement and all other documents and instruments delivered in connection herewith; and

(e) The Advisor and the Lender Parties shall have received a preliminary cash flow forecast of the Borrower and its Subsidiaries covering the 13-week period ending January 17, 2020, in Excel format (the “13-Week Forecast”), which 13-Week Forecast and any amendments thereto shall reflect, for the periods covered thereby, projected weekly disbursements (in line item detail), cash receipts (in line item detail), and ending cash for each week covered by the 13-Week Forecast.

SECTION 7. Reaffirmation of Guarantee and Security. Each Obligor, by its signature below, hereby agrees that:

(a) (i) after giving effect to this Agreement, the Security Documents shall continue to be in full force and effect and (ii) affirms and confirms all of its obligations and liabilities under the Term Loan Agreement and each other Loan Document, in each case after giving effect to this Agreement, including its guarantee of the Guaranteed Obligations and the pledge of and/or grant of a security interest in its assets as Collateral pursuant to the Security Documents to secure such Secured Obligations, all as provided in the Security Documents as originally executed, and acknowledges and agrees that such obligations, liabilities, guarantee, pledge and grant continue in full force and effect in respect of, and to secure, the Guaranteed Obligations under the Term Loan Agreement and the other Loan Documents, in each case after giving effect to this Agreement; and

(b) after giving effect to this Agreement, each Lien granted by it to the Agent for the benefit of the Secured Parties under each of the Loan Documents to which it is a party shall (i) continue in full force and effect during the term of the Term Loan Agreement and (ii) continue to secure the Guaranteed Obligations, in each case on and subject to the terms and conditions set forth in the Term Loan Agreement and the other Loan Documents.

SECTION 8. Release.

(a) In consideration of this Agreement and agreements of the Agent and Lender Parties contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Borrower and the other Obligors (collectively, the “Releasing Parties”), each on behalf of itself and its successors, assigns, and other legal representatives hereby absolutely, unconditionally and irrevocably releases, remises and forever discharges Agent, the Lender Parties, solely in their capacities as Lenders, and their respective present and former shareholders, affiliates, subsidiaries, divisions, predecessors, directors, officers, attorneys, employees, agents and other representatives, in each case solely in their capacities relative to the Lender Parties and not in any other capacity such party may have relative to the Releasing Parties (Agent, each Lender Party, and all such other Persons being hereinafter referred to collectively as the “Releasees” and individually as a “Releasee”), of and from all demands, actions, causes of action, suits, covenants, contracts, controversies, agreements, promises, sums of money, accounts, bills, reckonings, damages and any and all other claims, counterclaims, defenses, rights of set-off, demands and liabilities whatsoever of every name and nature, known or unknown, suspected or unsuspected, both at law and in equity, which Borrower, the Obligors or any of their respective successors, assigns or other legal

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representatives may now or hereafter own, hold, have or claim to have against the Releasees or any of them for, upon, or by reason of any circumstance, action, cause or thing whatsoever which arises at any time on or prior to the day and date of this Agreement, for or on account of, or in relation to, or in any way in connection with the Term Loan Agreement or any of the other Loan Documents or transactions thereunder (any of the foregoing, a “Claim” and collectively, the “Claims”). Each Releasing Party expressly acknowledges and agrees, with respect to the Claims, that it waives, to the fullest extent permitted by applicable law, any and all provisions, rights, and benefits conferred by any applicable U.S. federal or state law, or any principle of U.S. common law, that would otherwise limit a release or discharge of any unknown Claims pursuant to this Section 8. Furthermore, each of the Releasing Parties hereby absolutely, unconditionally and irrevocably covenants and agrees with and in favor of each Releasee that it will not sue (at law, in equity, in any regulatory proceeding or otherwise) any Releasee on the basis of any Claim released and/or discharged by the Releasing Parties pursuant to this Section 8. The foregoing release, covenant and waivers of this Section 8 shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment or prepayment of any of the Loans, or the termination of the Term Loan Agreement, this Agreement, any other Loan Document or any provision hereof or thereof.

(b) Each Releasing Party understands, acknowledges and agrees that its release set forth above may be pleaded as a full and complete defense and may be used as a basis for an injunction against any action, suit or other proceeding which may be instituted, prosecuted or attempted in breach of the provisions of such release.

(c) Each Releasing Party agrees that no fact, event, circumstance, evidence or transaction which could now be asserted or which may hereafter be discovered shall affect in any manner the final, absolute and unconditional nature of the release set forth above.

SECTION 9. Incorporation by Reference. Section 15 (Miscellaneous) of the Term Loan Agreement is hereby incorporated by reference as if set forth herein in its entirety.

SECTION 10. More Favorable Terms. To the extent that any other forbearance, standstill or other similar agreement entered into by the Borrower or any Obligor (any such agreement, a “Third Party Forbearance Agreement”), or any amendment to any Third Party Forbearance Agreement, in each case, entered into or agreed after the date of this Agreement and during the Forbearance Period, provides any benefit or right (including, without limitation, the benefit of a forbearance period of shorter duration than the Forbearance Period) to any creditor party thereto that is more favorable than the benefits and rights provided to the Agent and the Lenders under this Agreement, taking into account the terms and conditions of the underlying debt financing documents in effect with such creditor party, this Agreement shall be deemed to be amended so as to cause any such benefit or right to be incorporated into this Agreement concurrently with making any such benefit or right available, and on comparable terms as it is made available, to any such other creditor.

SECTION 11. Interest Rate. For so long as the Specified Defaults shall be continuing under the Term Loan Agreement, all Obligations shall continue to accrue at the Default Rate in the manner set forth in Section 3.1.1(b) and Section 13.10.2 of the Term Loan Agreement.

SECTION 12. Diligence Cooperation; Variance Report.

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(a) During the Forbearance Period, the Borrower shall cooperate reasonably with the Advisor and provide the Advisor with reasonable access to the Borrower’s facilities, books and records, officers and consultants and any information reasonably requested by the Advisor to perform the services within the scope of its engagement.

(b) During the Forbearance Period, the Borrower shall deliver to the Lender Parties and the Advisor on or prior to 5:00 p.m. (Eastern time) on Wednesday of every calendar week, beginning with the calendar week ending on November 2, 2019, a report for the weekly period ended on the most recent Friday that provides (x) a narrative description of any material variances from, or changes to, the 13-Week Forecast, (y) the aggregate amount of payments made during such period and (z) the aggregate book cash balance of the Borrower and Subsidiaries as of the close of such period.

(c) The Borrower and each Obligor hereby confirms, acknowledges and agrees that, unless waived in writing by the Agent (at the direction of the Lender Parties), the failure of Borrower to deliver any report or notice required by Section 12(b) hereof shall constitute a Forbearance Termination Event.

SECTION 13. Notice of Default. Each Obligor shall provide notice to the Agent and to counsel to the Lender Parties within one (1) business day of its obtaining knowledge of the occurrence of any Forbearance Termination Event, which notice shall state that such event has occurred and set forth, in reasonable detail, the facts and circumstances that gave rise to such event. Such notice shall be delivered to:

The Agent:

Cortland Products Corp.

225 W. Washington Street, 9^th Floor

Suite 2100

Chicago , Illinois 60606

Attn: Legal Department

Telecopy: 312 ###-###-####

Legal advisor to the Agent and the Lender Parties:

Davis Polk & Wardwell LLP

450 Lexington Avenue

New York, NY 10017

Attn: Derek Dostal ***@***)

         Damian Schaible ***@***)

All notices given in accordance with the provisions of this Section 13 shall be (x) deemed to have been given on the date of receipt and (y) in the case of such notices given to the Agent, promptly delivered by the Agent to the legal advisor to the Lender Parties.

[Signature pages to follow]

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IN WITNESS WHEREOF, this Forbearance Agreement has been executed by the parties hereto as of the date first written above.

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