Exhibit 10.3


 


FIRST
AMENDMENT TO SUBORDINATION AND INTERCREDITOR AGREEMENT


 


THIS
FIRST AMENDMENT TO SUBORDINATION AND INTERCREDITOR AGREEMENT, dated as of November 23, 2016 (this “Amendment”),
to the Subordination and Intercreditor Agreement dated as of September 1, 2016 (as further amended, restated, supplemented or
otherwise modified from time to time, the “Intercreditor Agreement”) is entered into by and among Longboard
Capital Advisors LLC (the “Subordinated Agent”), Ener-Core, Inc., a Delaware corporation (“Borrower”),
Ener-Core Power, Inc., a Delaware corporation (the “Guarantor”), Anthony Tang, as a Senior Lender (as defined
below) (the “Senior L/C Lender”), and Empery Tax Efficient, LP in its capacity as collateral agent for the
Senior Note Lenders (as defined below) (together with its successors and assigns, the “Agent”).


 


WITNESSETH:


 


WHEREAS,
the Borrower is entering into an additional securities purchase agreement, dated as of the date hereof with the Agent, and


 


WHEREAS,
the parties desire to amend the Intercreditor Agreement to include the additional securities purchase agreement and related notes
as “Senior Note Debt”.


 


NOW,
THEREFORE, in consideration of the agreements herein contained, and for other good and valuable consideration, the receipt and
legal sufficiency of which are hereby acknowledged, the parties hereby agree as follows:


 


1. Definitions.
All capitalized terms not otherwise defined herein and defined in the Intercreditor Agreement shall have the meanings ascribed
to such terms in the Intercreditor Agreement.


 


2. Amendment
to definition of Senior Note Agreements. The first sentence in Recital A to the Intercreditor Agreement is hereby amended
and restated in its entirety, to read as follows:


 


“Borrower,
Agent and Senior Note Lenders have entered into (i) a Securities Purchase Agreement dated as of April 22, 2015, (ii) a Securities
Purchase Agreement dated as of May 7, 2015, (iii) a Securities Purchase Agreement dated as of November 23, 2016 and (iv) those
Amendment Agreements dated as of November 23, 2016 (collectively, as each may be amended, restated, supplemented or otherwise
modified from time to time, the “Senior Note Agreements”) pursuant to which, among other things, Senior Note
Lenders have agreed, subject to the terms and conditions set forth in the Senior Note Agreements, to purchase, or receive upon
the amendment and restatement of existing senior secured notes of the Borrower, senior secured notes from Borrower.”


 


3. Amendment
to Legend. The legend in Section 2.9 of the Intercreditor Agreement is hereby amended and restated in its entirety, to read
as follows:


 


“This
instrument and the rights and obligations evidenced hereby are subordinate in the manner and to the extent set forth in that certain
Subordination and Intercreditor Agreement, dated as of September 1, 2016 (as the same may be amended or otherwise modified from
time to time pursuant to the terms thereof, the “Subordination Agreement”), by and among Longboard Capital
Advisors LLC (the “Subordinated Agent”), Ener-Core, Inc., a Delaware corporation (“Borrower”),
Ener-Core Power, Inc., a Delaware corporation (the “Guarantor”), Anthony Tang, as a Senior Lender (as defined
therein) (the “Senior L/C Lender”), and Empery Tax Efficient, LP in its capacity as collateral agent for the
Senior Note Lenders (as defined therein) (together with its successors and assigns, the “Agent”), to the indebtedness
(including interest) owed by the Credit Parties (as defined therein) pursuant to that certain (a)(i) Securities Purchase Agreement
dated as of April 22, 2015, (ii) Securities Purchase Agreement dated as of May 7, 2015, (iii) Securities Purchase Agreement dated
as of November 23, 2016 and (iv) Amendment Agreements dated as of November 23, 2016, in each case of clauses (i), (ii) and (iii),
by and among Borrower, Agent and the Senior Note Lenders and, in the case of clause (iv), by and between the Borrower and the
existing holders of certain senior secured notes of the Borrower, and (b) Backstop Security Support Agreement, dated as of November
2, 2015, by and between the Borrower and Senior L/C Lender, in each case, as amended, restated, supplemented, refinanced or otherwise
modified from time to time; and each holder of this instrument, by its acceptance hereof, irrevocably agrees to be bound by the
provisions of the Subordination Agreement.”


 






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4. Miscellaneous.


 


(a) Amendments.
No amendment, modification, termination, or waiver of any provision of this Amendment will be effective without the written
agreement of the parties hereto.


 


(b) Section
Titles. Section and subsection titles in this Amendment are included for convenience of reference only and shall have no substantive
effect.


 


(c) Applicable
Law. This Amendment shall be construed in all respects in accordance with and governed by the internal laws of the State of
New York, without giving effect to any conflicts of laws provisions.


 


(d) Counterparts.
This Amendment and any amendments, waivers, consents or supplements may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which, when so executed and delivered, will be deemed an original and all of
which shall together constitute one and the same instrument.


 


(e) Continued
Effectiveness of the Intercreditor Agreement. Each party to this Amendment hereby (a) acknowledges and consents to this Amendment,
and (b) confirms and agrees that the Intercreditor Agreement shall continue to be, in full force and effect and is hereby ratified
and confirmed in all respects, except that on and after the date hereof, all references to the Intercreditor Agreement shall mean
the Intercreditor Agreement as amended by this Amendment.


 


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IN
WITNESS WHEREOF, this Amendment is executed by each of the undersigned as of the date first above written.


 


	 	SUBORDINATED AGENT:
	 	 
	 	Longboard Capital Advisors LLC


 


	 	By	 
	 	Name:	 
	 	Title:	 


 


First
Amendment To


Subordination
and intercreditor agreement




 






     


     


    







 


	 	CREDIT PARTIES:
	 	 	 
	 	ENER-CORE, INC.
	 	 
	 	By	 
	 	Name:	 
	 	Title:	 
	 	 	 
	 	ENER-CORE
POWER, INC.
	 	 	 
	 	By	 
	 	Name:	 
	 	Title:	 


 


First
Amendment To


Subordination
and intercreditor agreement




 






     


     


    







 


	 	SENIOR
    L/C LENDER:
	 	 
	 	 
	 	Anthony
    Tang


 


First
Amendment To


Subordination
and intercreditor agreement



 






     


     


    







 


	 	AGENT:
	 	 	 
	 	EMPERY
TAX EFFICIENT, LP



	 	 
	 	By:	Empery
Asset Management, LP, its authorized agent

	 	 	 
	 	By	
	 	Name:	Brett
Director

	 	Title:	General
    Counsel


 


First
Amendment To


Subordination
and intercreditor agreement