Exhibit 10.3


 


THIRD
AMENDMENT TO SUBORDINATION AND INTERCREDITOR AGREEMENT


 


THIS
THIRD AMENDMENT TO SUBORDINATION AND INTERCREDITOR AGREEMENT, dated as of June 5, 2018 (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, 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, pursuant to which it will
issue and sell additional convertible senior secured notes, 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, (iv) those Amendment
Agreements dated as of November 23, 2016, (v) a Securities Purchase Agreement dated as of September 19, 2017, (vi) a Securities
Purchase Agreement dated as of June 5, 2018, (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 (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, (iv) Amendment Agreements dated as of November 23, 2016, (v) Securities Purchase Agreement dated
as of September 19, 2017, and (vi) Securities Purchase Agreement dated as of June 5, 2018, in each case of clauses (i), (ii),
(iii), (v), and (vi), 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, 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.”


 


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:




   


Third
Amendment To


 Subordination
and intercreditor agreement




 



     


     


    

 


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


   


	 	CREDIT PARTIES:
	 	 
	 	ENER-CORE, INC.
	 	 
	 	By	 
	 	Name: 	Domonic J. Carney
	 	Title:	Chief Financial Officer
	 	 
	 	ENER-CORE POWER, INC.
	 	 
	 	By	 
	 	Name: 	 Domonic J. Carney
	 	Title:	Chief Financial Officer




 


Third
Amendment To


Subordination and intercreditor
agreement



  



     


     


    

 


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


  


	 	SENIOR
    L/C LENDER:
	 	 
	 	 
	 	Anthony Tang


  


Third
Amendment To


Subordination and intercreditor
agreement


  



     


     


    

  


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


  


	 	AGENT:
	 	 
	 	EMPERY TAX EFFICIENT, LP
	 	 
	 	By: Empery Asset Management, LP, its authorized agent
	 	 
	 	By	 
	 	Name:  	Brett Director
	 	Title: 	General Counsel




 


Third
Amendment To


Subordination and intercreditor
agreement