Amended Statement of Beneficial Ownership (sc 13d/a)
31 10월 2019 - 6:02AM
Edgar (US Regulatory)
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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
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SCHEDULE
13D
Under the Securities Exchange Act of 1934
(Amendment No. 30)*
Empire
Resorts, Inc.
(Name
of Issuer)
Common
Stock, $.01 Par Value Per Share
(Title
of Class of Securities)
292052305
(CUSIP
Number)
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Steven
L. Wilner
Matthew
P. Salerno
James
E. Langston
Cleary
Gottlieb Steen & Hamilton LLP
One
Liberty Plaza
New York, NY 10006
212-225-2000
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(Name,
Address and Telephone Number of Person Authorized to Receive Notices and Communications)
October
30, 2019
(Date
of Event which Requires Filing of this Statement)
If
the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule
13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 140.13d-1(g), check the following box.
☐
Note:
Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §
240.13d-7 for other parties to whom copies are to be sent.
*
The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to
the subject class of securities, and for any subsequent amendment containing information which would alter the disclosures provided
in a prior cover page.
The
information required in the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section
18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the Notes).
CUSIP
No. 292052305
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1.
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Names
of Reporting Persons.
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I.R.S.
Identification Nos. of above persons (entities only).
Kien
Huat Realty III Limited
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2.
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Check
the Appropriate Box if a Member of a Group (See Instructions)
(a)
(b)
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☒
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4.
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Source
of Funds (See Instructions)
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AF
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5.
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Check
if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
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____
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6.
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Citizenship
or Place of Organization
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Isle
of Man
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Number
of
Shares
Beneficially
Owned
by
Each
Reporting
Person
With
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7.
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Sole
Voting Power
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0
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8.
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Shared
Voting Power
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34,114,606
(1)
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9.
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Sole
Dispositive Power
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0
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10.
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Shared
Dispositive Power
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34,114,606
(1)
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11.
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Aggregate
Amount Beneficially Owned by Each Reporting Person
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34,114,606
(1)
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12.
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Check
if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
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13.
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Percent
of Class Represented by Amount in Row (11)
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86.06%
(2)
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14.
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Type
of Reporting Person (See Instructions)
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CO
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1
This includes 28,914,606 shares of common stock, par value $.01 per share (the “Common Stock”), of Empire Resorts,
Inc. (the “Issuer”) and 5,200,000 shares of Common Stock into which the Series F Preferred Stock (the “Preferred
Stock”) beneficially owned by the reporting person can currently be converted.
2
Calculated on the basis of a total of 34,435,907 shares of Common Stock outstanding as of August 9, 2019, as reported by
the Issuer in its Quarterly Report on Form 10-Q filed on August 9, 2019 (the “10-Q”), 2,390 shares of Common Stock
into which the Series B Preferred Stock can be converted, and 5,200,000 shares of Common Stock into which the Preferred Stock
beneficially owned by the reporting persons can currently be converted.
CUSIP
No. 292052305
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1.
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Names
of Reporting Persons.
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I.R.S.
Identification Nos. of above persons (entities only).
Lim
Kok Thay
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2.
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Check
the Appropriate Box if a Member of a Group (See Instructions)
(a)
(b)
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☒
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4.
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Source
of Funds (See Instructions)
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AF
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5.
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Check
if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
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____
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6.
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Citizenship
or Place of Organization
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Malaysia
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Number
of
Shares
Beneficially
Owned
by
Each
Reporting
Person
With
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7.
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Sole
Voting Power
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0
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8.
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Shared
Voting Power
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34,114,606
(3)
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9.
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Sole
Dispositive Power
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0
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10.
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Shared
Dispositive Power
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34,114,606
(3)
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11.
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Aggregate
Amount Beneficially Owned by Each Reporting Person
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34,114,606
(3)
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12.
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Check
if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
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☒
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13.
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Percent
of Class Represented by Amount in Row (11)
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86.06%
(4)
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14.
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Type
of Reporting Person (See Instructions)
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IN
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3
This includes 28,914,606 shares of the Common Stock and 5,200,000 shares of Common Stock into which the Preferred Stock
beneficially owned by the reporting person can currently be converted.
4
Calculated on the basis of a total of 34,435,907 shares of Common Stock outstanding as of August 9, 2019, as reported by
the Issuer in the Form 10-Q, 2,390 shares of Common Stock into which the Series B Preferred Stock can be converted, and 5,200,000
shares of Common Stock into which the Preferred Stock beneficially owned by the reporting persons can currently be converted.
This Amendment No.
30 (this “Amendment No. 30”) amends and supplements the Schedule 13D filed by Kien Huat Realty III Limited (“Kien
Huat”) and Lim Kok Thay (together with Kien Huat, the “Reporting Persons”) with the Securities and Exchange Commission
on August 27, 2009, as previously amended (the “Schedule 13D”), relating to the Common Stock of the Issuer. All capitalized
terms used in this Amendment No. 30 and not otherwise defined herein have the meanings ascribed to such terms in the Schedule 13D.
Items 4, 5, 6 and 7 are hereby amended
and supplemented to add the following:
Item 4. Purpose of Transaction.
On October 24, 2019,
pursuant to the Existing Preferred Stock Commitment Letter and the Preferred Stock Commitment Letter Amendment, the Issuer requested
that Kien Huat subscribe for 75 shares of the Preferred Stock for consideration of $100,000 per share, in the aggregate amount
of $7,500,000 (the “Issuance”). On October 30, 2019, the Issuer and Kien Huat entered into a subscription agreement
in connection with the Issuance.
Item 5. Interest in Securities of the Issuer
The disclosure set
forth under Item 4 of this Amendment No. 30 is incorporated herein by reference.
(a-b) As of the
date hereof, the Reporting Persons, as a result of the Issuance, may be deemed to share beneficial ownership of 34,114,606 shares
of Common Stock, representing approximately 86.06% of the outstanding Common Stock (calculated on the basis of a total of 34,435,907
shares of Common Stock outstanding as of August 9, 2019, as reported by the Issuer in its Quarterly Report on Form 10-Q filed on
August 9, 2019, 2,390 shares of Common Stock into which the Series B Preferred Stock can be converted, and 5,200,000 shares of
Common Stock into which the Preferred Stock beneficially owned by the reporting persons can currently be converted.)
Item 6. Contracts, Arrangements, Understandings or Relationships
With Respect to Securities of the Issuer
The disclosure set forth under Item 4
of this Amendment No. 30 is incorporated herein by reference.
Item 7. Material to be Filed as Exhibits
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Exhibit
31
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Subscription Agreement, dated as of October 30, 2019, by and between
Kien Huat Realty III Limited and Empire Resorts, Inc. (incorporated by reference to Exhibit 10.1 of the Current Report on Form
8-K filed by the Issuer on October 30, 2019)
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SIGNATURES
After
reasonable inquiry and to the best of my knowledge, I certify that the information set forth in this statement is true, complete
and correct.
Dated:
October 30, 2019
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Kien Huat Realty III Limited
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By:
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/s/
Yap Chong Chew
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Name: Yap Chong Chew
Title:
Authorized Signatory
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Lim Kok Thay
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By:
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/s/
Yap Chong Chew
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Name: Lim Kok Thay
By: Yap Chong
Chew
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*
The Letter of Authorization given by Kien Huat Realty III Limited is filed as Exhibit 21 hereto.
**The Letter of Authorization given by Lim Kok Thay is filed as Exhibit 22 hereto.
EXHIBIT
INDEX
Exhibit
Index
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Description
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Exhibit
1
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Joint
Filing Agreement, dated as of August 27, 2009, by and between Lim Kok Thay and Kien Huat Realty III Limited.
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Exhibit
2
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Investment
Agreement, dated as of August 19, 2009, by and between Empire Resorts, Inc. and Kien Huat Realty III Limited (incorporated
by reference to Exhibit 10.1 to the Current Report on Form 8-K filed by the Issuer on August 19, 2009).
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Exhibit
3
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Stockholder
Voting Agreement, dated as of August 19, 2009, by and among Empire Resorts, Inc., Kien Huat Realty III Limited and the stockholders
signatory thereto (incorporated by reference to Exhibit 10.3 to the Current Report on Form 8-K filed by the Issuer on August
19, 2009).
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Exhibit
4
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Registration
Rights Agreement, dated as of August 19, 2009, by and between Empire Resorts, Inc. and Kien Huat Realty III Limited (incorporated
by reference to Exhibit 10.2 to the Current Report on Form 8-K filed by the Issuer on August 19, 2009).
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Exhibit
5
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Custody
Agreement, dated as of August 19, 2009, by and between Kien Huat Realty III Limited and JPMorgan Chase Bank, National Association,
as Custodian (incorporated by reference to Exhibit 5 to Schedule 13D filed on August 27, 2009).
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Exhibit
6
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Standby
Purchase Agreement dated as of April 12, 2013, by and between Empire Resorts, Inc. and Kien Huat Realty III Ltd. (incorporated
by reference to Exhibit 6 to Amendment No. 8 to Schedule 13D filed on April 15, 2013).
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Exhibit
7
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Standby
Purchase Agreement dated as of January 2, 2015, by and between Empire Resorts, Inc. and Kien Huat Realty III Ltd. (incorporated
by reference to Exhibit 99.1 to the Current Report on Form 8-K filed by the Issuer on January 5, 2015).
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Exhibit
8
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Standby
Purchase Agreement dated as of December 31, 2015, by and between Empire Resorts, Inc. and Kien Huat Realty III Ltd. (incorporated
by reference to Exhibit 99.1 to the Current Report on Form 8-K filed by the Issuer on January 4, 2016).
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Exhibit
9
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Letter
Agreement dated February 17, 2016, by and between Empire Resorts, Inc. and Kien Huat Realty III Ltd. (incorporated by reference
to Exhibit 4.1 to the Current Report on Form 8-K filed by the Issuer on February 18, 2016).
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Exhibit
10
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Note
Exchange Agreement, dated as of December 28, 2017, among Empire Resorts, Inc., Montreign Holding Company, LLC, and Kien Huat
Realty III Limited (incorporated by reference to Exhibit 10.4 of the Current Report on Form 8-K filed by the Issuer on January
3, 2018).
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Exhibit 11
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Amendment to Commitment Agreement, dated as
of December 28, 2017, by and between Empire Resorts, Inc., and Kien Huat Realty III Limited (incorporated by reference to
Exhibit 99.1 of the Current Report on Form 8-K filed by the Issuer on January 3, 2018).
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Exhibit
12
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Amendment
to Letter Agreement, dated as of December 28, 2017, by and between Empire Resorts, Inc., and Kien Huat Realty III Limited
(incorporated by reference to Exhibit 4.1 of the Current Report on Form 8-K filed by the Issuer on January 3, 2018).
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Exhibit 13
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Commitment Agreement
by and between Kien Huat Realty III Limited and Empire Resorts, Inc. as amended and restated by the Amended and Restated Commitment
Agreement, dated as of November 9, 2018, by and between Kien Huat Realty III Limited and Empire Resorts, Inc.
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Exhibit
14
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Subscription
Agreement, dated as of November 13, 2018, by and between Kien Huat Realty III Limited and Empire Resorts, Inc.
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Exhibit
15
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Amended
and Restated Certificate of Designations for the Series F Convertible Preferred Stock, dated as of November 9, 2018,
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Exhibit
16
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Subscription
Agreement, dated as of February 20, 2019, by and between Kien Huat Realty III Limited and Empire Resorts, Inc. (incorporated by
reference to Exhibit 10.1 of the Current Report on Form 8-K filed by the Issuer on February 20, 2019)
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Exhibit 17
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Amendment, dated
May 7, 2019, to the Commitment Agreement by and between Kien Huat Realty III Limited and Empire Resorts, Inc. as amended
and restated by the Amended and Restated Commitment Agreement, dated as of November 9, 2018, by and between Kien Huat Realty
III Limited and Empire Resorts, Inc.
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Exhibit
18
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Subscription
Agreement, dated as of May 21, 2019, by and between Kien Huat Realty III Limited and Empire Resorts, Inc.
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Exhibit
19
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Subscription
Agreement, dated as of June 17, 2019, by and between Kien Huat Realty III Limited and Empire Resorts, Inc.
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Exhibit 20
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Proposal, dated
as of July 25, 2019, by Kien Huat Realty III Limited to the special committee of the board of directors of Empire Resorts,
Inc.
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Exhibit 21
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Letter of Authorization,
given by Kien Huat Realty III Limited
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Exhibit 22
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Letter
of Authorization, given by Lim Kok Thay
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Exhibit 23
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Proposal Letter,
dated as of August 5, 2019, by Kien Huat Realty III Limited and Genting Malaysia Berhad to the special committee of the board
of directors of Empire Resorts, Inc.
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Exhibit
24
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Term
Sheet, dated as of August 5, 2019, by and between Kien Huat Realty III Limited and Genting Malaysia Berhad.
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Exhibit
25
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Agreement
and Plan of Merger, dated as of August 18, 2019, by and among Hercules Topco LLC, Hercules Merger Subsidiary Inc. and Empire
Resorts, Inc. (incorporated by reference to Exhibit 2.1 of the Current Report on Form 8-K filed by the Issuer on August 19,
2019)
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Exhibit
26
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Voting
Agreement, dated as of August 18, 2019, by and among Empire Resorts, Inc. and Kien Huat Realty III Limited (incorporated by reference
to Exhibit 2.3 of the Current Report on Form 8-K filed by the Issuer on August 19, 2019)
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Exhibit
27
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Letter
Agreement re: Equity Financing Commitment, dated as of August 18, 2019, by and among Hercules Topco LLC and Kien Huat Realty
III Limited.
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Exhibit
28
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Amendment,
dated August 18, 2019, to Letter Agreement, as last amended on May 7, 2019, by and between Kien Huat Realty III Limited and Empire
Resorts, Inc. (incorporated by reference to Exhibit 2.2 of the Current Report on Form 8-K filed by the Issuer on August 19, 2019)
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Exhibit
29
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Subscription
Agreement, dated as of August 26, 2019, by and between Kien Huat Realty III Limited and Empire Resorts, Inc. (incorporated by
reference to Exhibit 10.1 of the Current Report on Form 8-K filed by the Issuer on August 26, 2019)
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Exhibit
30
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Subscription
Agreement, dated as of September 23, 2019, by and between Kien Huat Realty III Limited and Empire Resorts, Inc. (incorporated
by reference to Exhibit 10.1 of the Current Report on Form 8-K filed by the Issuer on September 23, 2019)
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Exhibit 31
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Subscription Agreement, dated as of October 30, 2019, by and between
Kien Huat Realty III Limited and Empire Resorts, Inc. (incorporated by reference to Exhibit 10.1 of the Current Report on Form
8-K filed by the Issuer on October 30, 2019)
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