9777881-3 

UNITED STATES BANKRUPTCY COURT 

SOUTHERN DISTRICT OF FLORIDA 

WEST PALM BEACH DIVISION 

www.flsb.uscourts.gov

In re: 

 Chapter 11 Cases 

TOOJAY’S MANAGEMENT LLC, et al.,1

 Case No. 20-14792-EPK 

 (Jointly Administered) 

 Debtors. 

 / 

DEBTORS’ SECOND EMERGENCY MOTION FOR INTERIM AND FINAL ORDERS 

AUTHORIZING PAYMENT OF PREPETITION CLAIMS OF CRITICAL VENDORS 

(Emergency Hearing on May 21, 2020 at 1:30 p.m. Requested) 

Statement of Exigent Circumstances 

The vendors which the Debtors seek to pay through this Motion are critical to the 

Debtors’ daily operations and, thus, essential to the successful reorganization of the 

Debtors. Without the immediate authorization to pay the critical vendor claims in 

accordance with the terms fully set forth below, the Debtors will be irreparably 

harmed because they will face disruption to their business and delay in purchasing 

the goods and services necessary to preserve the going concern, enterprise value of 

their business. The Debtors request that the Court conduct a hearing on May 21, 

2020 to coincide with the hearing currently scheduled on the Debtors’ Emergency 

Motion For Interim and Final Orders Authorizing the Debtors to Pay U.S. Food 

Service, Inc.’s Critical Vendor Claim in Accordance with Negotiated Business 

Arrangement [ECF No.105], as amended. The Debtors request that the Court waive 

the requirements of Local Rule 9075-1(B) as the relief requested is urgent in nature 

and does not lend itself to advance resolution. 

1 The Debtors in these Chapter 11 Cases, along with the last four digits of each Debtors’ federal tax identification 

number, are: TooJay’s Management LLC (0443), TJ Acquisition, LLC (1455), TooJay’s Altamonte, L.L.C. (5466), 

TooJay’s at Dr. Phillips, L.L.C. (8342), TooJay’s Bakery & Commissary, L.L.C. (7016), TooJay’s Boynton Oakwood 

Square, L.L.C. (3583), TooJay’s Colonial, L.L.C. (6530), TooJay’s Coral Springs, L.L.C. (5919), TooJay’s Dania 

Beach, L.L.C. (2030), TooJay’s Downtown Gardens, L.L.C. (0351), TooJay’s Downtown Tampa, L.L.C. (5046), 

TooJay’s Glades, L.L.C. (3884), TooJay’s Hallandale, L.L.C. (4596), TooJay’s Jupiter, L.L.C. (5986), TooJay’s Lake 

Worth, L.L.C. (3353), TooJay’s Naples, LLC (3336), TooJay’s N Ft. Lauderdale, L.L.C. (8438), TooJay’s of Lake 

Mary, LLC (0594), TooJay’s of Ocoee, L.L.C. (9601), TooJay’s of Sarasota, L.L.C. (7584), TooJay’s of the Villages, 

L.L.C. (0798), TooJay’s of West Boca, L.L.C. (8250), TooJay’s Palm Beach, L.L.C. (1908), TooJay’s Plantation, 

L.L.C. (8882), TooJay’s Stuart, L.L.C. (4505), TooJay’s Vero, L.L.C. (0750), TooJay’s Villages III, L.L.C. (5254), 

TooJay’s VLG II, L.L.C. (2492), TooJay’s Waterford Lakes, L.L.C. (9363), TooJay’s Wellington Commons, L.L.C. 

(3967), and TooJay’s West Palm Beach, L.L.C. (4685). 

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The above-captioned debtors and debtors-in-possession (each, a “Debtor” and collectively, 

the “Debtors”), by and through undersigned counsel, pursuant to 11 U.S.C. §§ 105, 363(b), 1107(a) 

and 1108, Rules 6003 and 6004 of the Federal Rules of Bankruptcy Procedure and Local Rule 

9013-(k), move the Court (the “Motion”) for the entry of an Order authorizing the Debtors to pay 

a portion of the prepetition claims of certain vendors on terms negotiated with those vendors and 

that are critical to the operation of the Debtors’ business. In support of this Motion, the Debtors 

rely upon the Declaration of Edward Maxwell Piet in Support of the Debtors’ Chapter 11 Petitions 

and First Day Motions (the “First Day Declaration”) and the Declaration of Kevin Gagnon in 

Support of Second Day Motions (“Second Day Declaration”). In further support of this Motion,

the Debtors respectfully represent as follows: 

JURISDICTION 

1. This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334. 

This is a core proceeding pursuant to 28 U.S.C. § 157(b). 

2. Venue is proper before this Court pursuant to 28 U.S.C. §§ 1408 and 1409. 

3. The statutory predicates for the relief sought herein are 11 U.S.C. Sections 363(b), 

1107(a), and 1108, Rules 6003 and 6004 of the Federal Rules of Bankruptcy Procedure (the 

“Bankruptcy Rules”) and Local Rule 9013-1(k). 

BACKGROUND 

4. On April 29, 2020 (the “Petition Date”) the Debtors commenced the abovecaptioned cases (the “Chapter 11 Cases”) by filing voluntary petitions for relief under Chapter 11 

of Title 11 of the United States Code (the “Bankruptcy Code”) in this Court. 

5. The Debtors are operating their businesses and managing their affairs as debtorsin-possession pursuant to Sections 1107(a) and 1108 of the Bankruptcy Code. 

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6. The Debtors currently operate a total of twenty-eight (28) “TooJay’s” branded 

restaurants and a bakery/commissary. The bakery/commissary is a 30,000 square foot processing 

facility that manufactures a wide variety of baked goods, soups and other fresh products using 

proprietary recipes (“Proprietary Products”). For a more detailed description of the Debtors and 

their operations, the Debtors respectfully refer the Court and all parties-in-interest to the First Day 

Declaration and the Second Day Declaration. 

7. On May 14, 2020, the Debtors filed their Emergency Motion for Interim and Final 

Orders authorizing the Debtors to Pay U.S. Foodservice, Inc.’s Critical Vendor Claim in 

Accordance with Negotiated Business Arrangement [ECF No. 105], as amended2 (the “First 

Critical Vendor Motion”) seeking to pay the prepetition claims of U.S. Foods, Inc. (“U.S. Foods”) 

in exchange for the granting of 60-day credit terms on post-petition orders of the Debtors and other 

economic terms. U.S. Foods is a broadline distributor of food and paper products which is critical 

to the Debtors’ business operations. 

8. The First Critical Vendor Motion is set for hearing on May 21, 2020. 

RELIEF REQUESTED AND BASIS THEREFOR 

A. Critical Vendors 

9. To operate their 28 restaurants, the Debtors require a wide variety of quality bakery 

products, coffee, soup, and smoked fish. If delivery of these products to the Debtors is stopped or 

delayed for even one day, the Debtors could not operate their restaurants. The Debtors business 

depends on, among other things, the Debtors’ ability to retain their vendors and maintain their 

reputation and customer loyalty. The Debtors need to be able to assure their customers, vendors, 

and employees that, notwithstanding the filing of the Chapter 11 Cases, they will continue to 

2

 On May 19, 2020, the Debtors amended the First Critical Vendor Motion solely to correct a scrivener’s error. 

Case 20-14792-EPK Doc 127 Filed 05/20/20 Page 3 of 22
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operate at the highest level. This requires the Debtors to consistently deliver the same high-quality 

food to their customers every day. To do so, the Debtors must maintain their trading relationships 

with key vendors. The Debtors seek authority to pay a portion of the pre-petition claims of the 

following vendors (collectively, the “Critical Vendors”) on the following terms: 

• Niagara Distributors, Inc. (“Niagara”): Niagara is the wholesale bakery 

supplier to the Debtors. Niagara provides specialty products that are superior in 

quality that which the Debtors can obtain from other vendors, including the highquality fondant used to make the iconic TooJay’s twice dipped black and white 

cookies. Each year the TooJay’s bakery produces over 1.4 million of these black 

and white cookies. The specialty products provided by Niagara are far superior to 

those of any other provider and the loss of this vendor would damage the Debtors’ 

brand and, thus, their reorganization. The Debtors propose to pay Niagara 50% of 

its prepetition claim of $36,588.95, or $18,294.47, in full satisfaction of its prepetition claim. In return, Niagara has agreed to continue providing specialty 

products to the Debtors on 30-day terms. 

• Royal Cup, Inc. (“Royal Cup”): Royal Cup provides the Debtors’ restaurants 

with coffee, tea products and brewing and dispensing equipment. Coffee and tea 

are critical products of the Debtors business and are the #1 beverage group for the 

Debtors. Royal Cup provides the coffee equipment used in each of the Debtors’ 

restaurants. If the Debtors are unable to maintain their relationship with Royal Cup, 

the existing coffee equipment would be removed from all of the Debtors’ 28 

restaurants. The Debtors would have to locate a replacement vendor and replace the 

equipment during which time the Debtors may not be able to serve coffee and tea 

to their valued customers. As a result of negotiations with the Debtors, Royal Cup 

has agreed to accept approximately 75% of its prepetition claim of $24,184.46, or 

$18,000.00, in full satisfaction of its pre-petition claim. The payment will be made 

in four (4) equal installments of $4,500. In return, Royal Cup has agreed to continue 

providing coffee and tea products to the Debtors with 30-day terms. 

• Punchh Inc. (“Punchh”): Punchh is the provider and manager of certain 

programs, practices, and marketing strategies, used by the Debtors to develop and 

sustain positive customer relationships. The Debtors maintain two loyalty 

programs: (1) Delicious Rewards; and (2) Catering Rewards (collectively, the 

“Loyalty Programs”). The Delicious Rewards program is a points-based system 

managed by Punchh. Punchh also manages a similar, but separate, points-based 

program for catering order customers. The Loyalty Programs enhance revenues by, 

among other things, encouraging repeat business and developing new customer 

relationships. Punchh has managed these Loyalty Programs for years and its 

continued participation is critical to the continued success of the Loyalty Programs. 

The loss of Punchh would jeopardize the Loyalty Program and would likely result 

in the loss of customers. Punch has agreed to accept 50% of its prepetition claim in 

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the amount of $20,940.00, or $10,470.00, in full satisfaction of its pre-petition 

claim. Punchh has also agreed to continue managing the Debtors’ Customer 

Programs and Loyalty Programs with payment being due on net 30-day terms. 

• Custom Culinary, Inc. (“Custom Culinary”): Custom Culinary makes the soup 

bases the Debtors use to make their signature chicken soup. TooJays prepares 

approximately 86,000 gallons of chicken soup each year. Custom Culinary’s 

product is superior in quality to any other which the Debtors have used. The 

Debtors have had a trading relationship with Custom Culinary for over 20 years. 

The Debtors’ customers are accustomed to, and demand, high quality food and 

attentive service. The Debtors believe they cannot procure another provider that 

will consistently deliver the same quality as Custom Culinary. Maintaining their 

signature food profiles during the pendency of the Chapter 11 Cases is critical to 

the Debtors’ reorganization. As a result of negotiations, Custom Culinary has 

agreed to accept payment in the amount of 75% of its prepetition claim of 

$14,377.18, or $10,782.88, in full satisfaction of its pre-petition claim. In 

exchange, Custom Culinary has agreed to continue providing product to the 

Debtors on net 30-day terms, up to at a $10,000.00 credit limit. 

• Acme Smoked Fish of Florida, LLC (“Acme”): Acme is the sole provider of 

smoked salmon for the Debtors’ restaurants. Acme is an industry leader and one of 

the US’ largest producers specializing in smoked salmon and other smoked fish 

products. The Debtors have sought out vendors of similar smoked fish product 

and have not been able to find any vendor that can provide the same quality product 

at its current price point. As a result of negotiations, Acme has agreed to accept 

payment of 50% of its prepetition claim of $7,706.00, or $3,853.00, in full 

satisfaction of its pre-petition claim. In return, Custom Culinary has agreed to 

continue providing product to the Debtors with 7-day terms going forward.

C. The Debtors Have Successfully Negotiated Reduced Payments of Critical Vendor 

Claims in Amounts that are only 50%-75% of the Prepetition Amounts Due to the 

Critical Vendors. 

10. Pursuant to extensive negotiations between the Debtors and each of the Critical 

Vendors, each Critical Vendor has agreed to accept between fifty percent (50%) and seventy five 

percent (75%) of the amount of its pre-petition claim as shown on the Debtors’ books and records 

(collectively, the “Critical Vendor Claims”), in full satisfaction of the Critical Vendor Claims. 

11. The arrangements with the Critical Vendors are in the best interests of the estates 

and their creditors. In addition to negotiating the treatment and payment of its Critical Vendor 

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Claim, each Critical Vendor has also agreed to continue to provide services or products to the 

Debtors on the terms set forth herein. 

BASIS FOR RELIEF REQUESTED

A. Payment of the Critical Vendor Claim Furthers the Debtors’ Fiduciary Duties Under 

11 U.S.C. §§ 1107(A) and 1108 

12. A debtor operating its business as a debtor-in-possession under Sections 1107(a) 

and 1108 of the Bankruptcy Code, is a fiduciary “holding the bankruptcy estate and operating the 

business for the benefit of creditors and (if the value justifies) equity owners.” In re CoServ, 

L.L.C., 273 B.R. 487, 497 (Bankr. N.D. Tex. 2002). Implicit in the duties of a chapter 11 debtorin-possession is the duty “to protect and preserve the estate, including an operating business's 

going-concern value.” Id. 

13. Courts have noted that there are instances in which a debtor-in-possession can 

fulfill its fiduciary duty “only ... by the preplan satisfaction of a prepetition claim.” Id. The CoServ

court specifically noted that preplan satisfaction of prepetition claims may be a valid exercise of a 

debtor's fiduciary duty when the payment “is the only means to effect a substantial enhancement 

of the estate,” Id. at 479, and also when the payment is made to “sole suppliers of a given product.” 

Id. at 498. The court provided a three-prong test for determining whether a preplan payment on 

account of a prepetition claim is a valid exercise of a debtor's fiduciary duty: (1) it must be critical 

that the debtor deal with the claimant; (2) unless it deals with the claimant, the debtor risks the 

probability of harm, or, alternatively, loss of economic advantage to the estate or the debtor's going 

concern value, which is disproportionate to the amount of the claimant's prepetition claim; and (3) 

there is no practical or legal alternative by which the debtor can deal with the claimant other than 

by payment of the claim. Id. at 498. 

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14. The payment of the Critical Vendor Claims meets each element of the CoServ

standard. Without the goods and services provided by the Critical Vendors, the Debtors cannot 

provide the quality and service that their loyal customers have come to expect, and any attempted 

transition to other providers of goods or services would come with increased costs, and likely lower 

quality products, than those provided by the Critical Vendors. Failure to satisfy the Critical Vendor 

Claims on the terms described herein endangers the Debtors’ ability to obtain critical and necessary 

goods and services on favorable business terms, thereby jeopardizing the Debtors’ reorganization. 

The harm and economic disadvantage that would stem from the failure to pay the Critical Vendor 

Claims is grossly disproportionate to the amount of prepetition claims that will be paid if this 

Motion is granted. 

15. Consistent with a debtor's fiduciary duties, courts have also authorized payment of 

prepetition obligations under § 363(b) of the Bankruptcy Code where a sound business purpose 

exists for doing so. See, e.g., In re Tropical Sportswear Int'l Corp., 320 B.R. 15, 17-18 (Bankr. 

M.D. Fla. 2005) (authorizing payment to critical vendors for prepetition amounts and finding that 

(i) a sound business justification existed for payment because the vendors would not do business 

with the debtors absent critical vendor status, and (ii) the payments would enhance the debtors' 

estates to the benefit of all creditors); In re Ionosphere Clubs, Inc., 98 B.R. 174, 175 (Bankr. S.D. 

N.Y. 1989) (citing bankruptcy court determination that a sound business justification existed to 

justify payment of prepetition wages); see also Armstrong World Indus., Inc. v. James A. Phillips, 

Inc., (In re James A. Phillips, Inc.), 29 B.R. 391, 397-98 (S.D. N.Y. 1983) (relying on § 363 to 

allow contractor to pay prepetition claims of suppliers who were potential lien claimants because 

the payments were necessary for general contractors to release funds owed to debtors). 

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16. In Tropical Sportswear Int’l Corp., the Court approved the debtor’s request for 

payments to critical vendors pursuant to Sections 105 and 363(b). In determining whether 

payments to critical vendors are appropriate under Section 363(b), the Court established the 

following two part test: “(1) those critical vendors are indeed critical and have refused to do 

business with a debtor absent payment; and (2) only if the court finds that the disfavored creditors 

will be at least as well off as a result of the court’s granting critical vendor status to the select 

vendors.” Id. at 20. There, the Court concluded that with respect to the second prong, “permitting 

a critical vendor to be paid for pre-petition amounts due, a bankruptcy court facilitates the 

reorganization for the benefit of the debtor’s estate and the creditor body as a whole. The result is 

that a debtor’s estate is maximized, and even the disfavored creditors will receive greater payments 

on their respective claims.” Id. Based on the facts of this case, the Court allowed certain critical 

vendors to be paid 77.5% of their prepetition claims. Id. at 21. 

17. The Debtors have examined other options short of paying the Critical Vendor 

Claims on the terms set described herein and have determined that to avoid significant disruption 

to their business, no practical or legal alternative exists to the partial payment of the Critical 

Vendor Claims. 

18. Lastly, on facts similar to those before this Court, this Court approved payment of 

part of a prepetition claim held by a vendor who provided computer and software-related services 

that were deemed critical to the debtor’s business and reorganization efforts. In re Proven Methods 

Seminars, LLC d/b/a National Grants Conferences, Case No. 08-28469-BKC-EPK (Bankr. S.D. 

Fla. Mar. 9, 2009) (Docket No. 136). In return for payment, the vendor, like the Critical Vendors 

here, agreed to continue providing post-petition services to the debtor.

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9777881-3 9

B. The Doctrine of Necessity and Bankruptcy Code § 105 Support Payment of the 

Critical Vendor Claim 

19. The Debtors’ proposed payment of the Critical Vendor Claims should be authorized 

pursuant to Bankruptcy Code Section 105 and under the “doctrine of necessity.” 

20. The doctrine of necessity is a well-settled principle of law that allows a bankruptcy 

court to authorize payment of certain prepetition claims prior to the completion of the 

reorganization process where the payment of such claims is necessary to facilitate the 

reorganization or where failure to pay such prepetition claims poses a real and significant threat to 

a debtor's reorganization. See In re Just for Feet, Inc., 242 B.R. 821, 826 (D. Del. 1999) 

(authorizing payment to vendors whose goods were essential to debtors' reorganization efforts); In 

re NVR L.P., 147 B.R. 126, 127 (Bankr. E.D. Va. 1992) (“[T]he court can permit preplan payment 

of a pre-petition obligation when essential to the continued operation of the debtor.”); In re EaglePicher Indus., Inc., 124 B.R. 1021, 1023 (Bankr. S.D. Ohio 1991) (“[T]o justify payment of a prepetition unsecured creditor, a debtor must show that the payment is necessary to avert a serious 

threat to the Chapter 11 process.”); Ionosphere Clubs, 98 B.R. at 175 (discussing bankruptcy court 

approval of payment of certain pre-petition wage, salary, medical benefit, and business expense 

claims); In re Lehigh New Eng. Ry. Co., 657 F.2d 570, 581 (3d Cir. 1981) (where payment of 

prepetition claim is essential to the ongoing operations of the debtor, payment may be authorized 

out of the corpus of the estate); see also Miltenberger v. Logansport Ry. Co., 106 U.S. 286, 311 

(1882) (“Many circumstances may exist which may make it necessary and indispensable to the 

business of the road and the preservation of the property, for the receiver to pay pre-existing debts 

of certain classes out of the earnings of the receivership, or even the corpus of the property, under 

the order of the court, with a priority of lien.”). 

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21. The doctrine of necessity is a widely accepted component of modern bankruptcy 

jurisprudence. See Just For Feet, 242 B.R. at 826 (approving payment of key inventory suppliers' 

prepetition claims when such suppliers could destroy debtor's business by refusing to deliver new 

inventory on eve of debtor's key sales season); In re Payless Cashways, Inc., 268 B.R. 543, 546-

47 (Bankr. W.D. Mo. 2001) (authorizing payment of critical prepetition suppliers' claims when 

such suppliers agree to provide post-petition trade credit); see also Ionosphere Clubs, 98 B.R. at 

175. 

22. Moreover, the doctrine of necessity has been implicitly recognized within this 

Circuit since its inception, pursuant to prior Fifth Circuit Court of Appeals case law. See S. Ry. Co. 

v. U.S. Fid. & Guar. Co., 87 F.2d 118, 120 (5th Cir. 1936) (“There is a doctrine which permits 

preferential payment of a common claim when necessary for the benefit of the estate....” (citing 

Miltenberger, 106 U.S. at 311)); see also Bonner v. City of Prichard, 661 F.2d 1206, 1209 (l1th 

Cir. 1981) (“We hold that the decisions of the United States Court of Appeals for the Fifth Circuit 

(the 'former Fifth' or the ‘old Fifth’), as that court existed on September 30, 1981, handed down 

by that court prior to the close of business on that date, shall be binding as precedent in the Eleventh 

Circuit, for this court, the district courts, and the bankruptcy courts in the circuit.”); see also 

Tropical Sportswear, 320 B.R. at 17 (Bankr. M.D. Fla. 2005) (authorizing payment to critical 

vendors where key vendors have refused to do business with a debtor absent payment and 

disfavored creditors will not suffer as a result of the payment (citing In re Kmart Corporation, 359 

F.3d 866, 873 (7th Cir. 2004)). 

23. Consistent with the factors outlined in Tropical Sportswear and Kmart, the 

proposed treatment of the Critical Vendor Claims: (i) is necessary to the Debtors’ reorganization, 

(ii) is supported by sound business justification, in that the Critical Vendors will not provide postCase 20-14792-EPK Doc 127 Filed 05/20/20 Page 10 of 22
9777881-3 11

petition trade credit to the Debtors on similar terms, without which terms the Debtors’ liquidity 

would become even more severely constrained, and (iii) will not result in additional prejudice to 

any disfavored creditors. See 320 B.R. at 17, Kmart, 359 F.3d at 873. 

24. For the reasons stated herein, the Debtors submit that the payment of the Critical 

Vendor Claims, particularly where the Debtors have been able to obtain agreement from the 

Critical Vendors to accept between fifty (50%) and seventy-five (75%) percent of the amounts 

due to them will permit the Debtors to preserve their trading relationships with the Critical 

Vendors, each of whom provides goods or services that are essential to the successful 

reorganization of the Debtors. 

25. The proposed treatment of the Critical Vendors on the terms set forth herein 

represents a prudent exercise of the Debtors’ business judgment. 

WHEREFORE, the Debtors respectfully request that the Court enter an order in the form 

attached hereto as Exhibit “A” (i) granting the relief requested in this Motion; (ii) authorizing, but 

not directing, the Debtors to pay the Critical Vendor Claims on the terms set forth herein; and 

(iii) granting such other relief as the Court deems just and proper. 

Dated: May 20, 2020 Respectfully submitted, 

 BERGER SINGERMAN LLP 

 Counsel for Debtors-in-Possession 

1450 Brickell Avenue, Ste. 1900 

 Miami, FL 33131 

 Telephone: (305) 755-9500 

 Facsimile: (305) 714-4340 

 By: /s/ Paul Steven Singerman 

 Paul Steven Singerman 

 Florida Bar No. 378860 

 singerman@bergersingerman.com 

 Jordi Guso 

 Florida Bar No. 0863580 

 jguso@bergersingerman.com

Case 20-14792-EPK Doc 127 Filed 05/20/20 Page 11 of 22
9777881-3 12

 Michael J. Niles 

 Florida Bar No. 107203 

 mniles@bergersingerman.com

CERTIFICATE OF SERVICE 

 I HEREBY CERTIFY that a true and correct copy of the foregoing has been served 

electronically through the Court’s CM/ECF system upon all parties registered to receive electronic 

notice in this case as reflected on the attached Electronic Notice List and via U.S. Regular Mail, 

postage prepaid, upon all parties on the attached Master Service List on this 20th day of May, 2020. 

 /s/ Paul Steven Singerman 

 Paul Steven Singerman 

Case 20-14792-EPK Doc 127 Filed 05/20/20 Page 12 of 22
9777881-3 

Electronic Mail Notice List

The following is the list of parties who are currently on the list to receive email notice/service 

for this case. 

• David Agay dagay@mcdonaldhopkins.com 

• Joaquin J Alemany joaquin.alemany@hklaw.com, jose.casal@hklaw.com 

• Scott Andron sandron@broward.org 

• Joseph H Baldiga bankrupt@mirickoconnell.com 

• Marc P Barmat mbarmat@furrcohen.com, 

rrivera@furrcohen.com;atty_furrcohen@bluestylus.com;staff1@furrcohen.com 

• Eyal Berger eyal.berger@akerman.com, jeanette.martinez@akerman.com 

• Daren Brinkman firm@brinkmanlaw.com, 7764052420@filings.docketbird.com 

• Alan M Burger aburger@mcdonaldhopkins.com, 

jpaul@mcdonaldhopkins.com;ltimoteo@mcdonaldhopkins.com 

• Paul W Carey pcarey@mirickoconnell.com 

• Robert W Davis robert.davis@hklaw.com, pauline.nye@hklaw.com 

• Suzanne V Delaney sdelaney@storeylawgroup.com, sbaker@storeylawgroup.com 

• Mary Jean Fassett mjf@mccarronlaw.com 

• Ronald E Gold rgold@fbtlaw.com, eseverini@fbtlaw.com;khardison@fbtlaw.com 

• Michael I Goldberg michael.goldberg@akerman.com, charlene.cerda@akerman.com 

• Siobhan E Grant sgrant@hinshawlaw.com, lleon@hinshawlaw.com

• Jordi Guso jguso@bergersingerman.com, 

fsellers@bergersingerman.com;efile@bergersingerman.com;efile@ecf.inforuptcy.com 

• Mark Journey mjourney@broward.org, swulfekuhle@broward.org 

• Dana L Kaplan dana@kelleylawoffice.com, 

tina@kelleylawoffice.com;cassandra@kelleylawoffice.com;kristina@kelleylawoffice.co

m;debbie@kelleylawoffice.com;craig@kelleylawoffice.com 

• Amanda Klopp amanda.klopp@akerman.com 

• Kevin Thomas Lamb klamb@jonesfoster.com 

• Robert L LeHane rlehane@kelleydrye.com, MVicinanza@ecf.inforuptcy.com 

• Ilan Markus imarkus@barclaydamon.com, docketing@barclaydamon.com 

• Jonathan D. Marshall jmarshall@choate.com 

• Orfelia M Mayor omayor@ombankruptcy.com, legalservices@pbctax.com 

• Stephen A Metz smetz@offitkurman.com 

• Michael Jordan Niles mniles@bergersingerman.com 

• Office of the US Trustee USTPRegion21.MM.ECF@usdoj.gov 

• Grace E. Robson grobson@mrthlaw.com, 

jgarey@mrthlaw.com,mrthbkc@gmail.com,lgener@mrthlaw.com,grobson@ecf.courtdriv

e.com 

• Jason A Rosenthal jason@therosenthallaw.com, 

jmorando@therosenthallaw.com;jennifer@therosenthallaw.com 

• Bradley S Shraiberg bss@slp.law, 

dwoodall@slp.law;bshraibergecfmail@gmail.com;dlocascio@slp.law;pmouton@slp.law 

• Paul Steven Singerman singerman@bergersingerman.com, 

mdiaz@bergersingerman.com;efile@bergersingerman.com;efile@ecf.inforuptcy.com 

Case 20-14792-EPK Doc 127 Filed 05/20/20 Page 13 of 22
9777881-3 2

• Ruel W Smith rsmith@hinshawlaw.com, 

vtorres@hinshawlaw.com;ehsu@hinshawlaw.com 

• Mark E Steiner MES@lgplaw.com, pm@lgplaw.com 

• Allen R Tomlinson atomlinson@jonesfoster.com, mbest@jonesfoster.com 

• Richard B Warren rick@warrengrant.com, 

jennifer@warrengrant.com;michael@warrengrant.com 

• Karin Ingrid Warrner ingrid.warrner@akerman.com 

Case 20-14792-EPK Doc 127 Filed 05/20/20 Page 14 of 22
9777881-3 

EXHIBIT “A” 

 (PROPOSED ORDER) 

Case 20-14792-EPK Doc 127 Filed 05/20/20 Page 15 of 22
UNITED STATES BANKRUPTCY COURT 

SOUTHERN DISTRICT OF FLORIDA 

WEST PALM BEACH DIVISION 

www.flsb.uscourts.gov

In re: 

 Chapter 11 Cases 

TOOJAY’S MANAGEMENT LLC, et al.1 Case No. 20-14792-EPK 

 (Jointly Administered) 

 Debtors. 

 / 

ORDER GRANTING DEBTORS’ SECOND EMERGENCY 

MOTION FOR INTERIM AND FINAL ORDERS AUTHORIZING THE 

PAYMENT OF PREPETITION CLAIMS OF CRITICAL VENDORS 

THIS MATTER came before the Court on the _____ day of May, 2020, at 

_______a.m./p.m. in West Palm Beach, Florida, upon the Debtors’ Second Emergency Motion 

1 The Debtors in these Chapter 11 Cases, along with the last four digits of each Debtors’ federal tax identification 

number, are: TooJay’s Management LLC (0443), TJ Acquisition, LLC (1455), TooJay’s Altamonte, L.L.C. (5466), 

TooJay’s at Dr. Phillips, L.L.C. (8342), TooJay’s Bakery & Commissary, L.L.C. (7016), TooJay’s Boynton 

Oakwood Square, L.L.C. (3583), TooJay’s Colonial, L.L.C. (6530), TooJay’s Coral Springs, L.L.C. (5919), 

TooJay’s Dania Beach, L.L.C. (2030), TooJay’s Downtown Gardens, L.L.C. (0351), TooJay’s Downtown Tampa, 

L.L.C. (5046), TooJay’s Glades, L.L.C. (3884), TooJay’s Hallandale, L.L.C. (4596), TooJay’s Jupiter, L.L.C. 

(5986), TooJay’s Lake Worth, L.L.C. (3353), TooJay’s Naples, LLC (3336), TooJay’s N Ft. Lauderdale, L.L.C. 

(8438), TooJay’s of Lake Mary, LLC (0594), TooJay’s of Ocoee, L.L.C. (9601), TooJay’s of Sarasota, L.L.C. 

(7584), TooJay’s of the Villages, L.L.C. (0798), TooJay’s of West Boca, L.L.C. (8250), TooJay’s Palm Beach, 

L.L.C. (1908), TooJay’s Plantation, L.L.C. (8882), TooJay’s Stuart, L.L.C. (4505), TooJay’s Vero, L.L.C. (0750), 

TooJay’s Villages III, L.L.C. (5254), TooJay’s VLG II, L.L.C. (2492), TooJay’s Waterford Lakes, L.L.C. (9363), 

TooJay’s Wellington Commons, L.L.C. (3967), and TooJay’s West Palm Beach, L.L.C. (4685). 

Case 20-14792-EPK Doc 127 Filed 05/20/20 Page 16 of 22
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for Interim and Final Orders Authorizing Payment of Prepetition Claims of Critical Vendors 

[ECF No. ___] (the “Motion”). The Motion seeks entry of an order authorizing, but not 

directing, the Debtors to pay a portion of the prepetition claims of certain vendors that are critical 

to the operation of Debtors’ business in full satisfaction of their prepetition claims, as more fully 

set forth in the Motion. The Court finds that: (i) it has jurisdiction over the matters raised in the 

Motion pursuant to 28 U.S.C. §§ 157 and 1334; (ii) this is a core proceeding pursuant to 28 

U.S.C. § 157(b)(2)(A); (iii) venue is proper before this Court pursuant to 28 U.S.C. §§ 1408 and 

1409; (iv) the relief requested in the Motion is in the best interests of the Debtors, their estates, 

creditors and other parties in interest; (v) notice of the Motion and the hearing were appropriate 

under the circumstances and no other notice need be provided; and (vi) upon review of the record 

before the Court, including the legal and factual bases set forth in the Motion, the First Day 

Declaration2

, the Second Day Declaration and the statements made by counsel at the hearing, 

good and sufficient cause exists to grant the relief requested. Accordingly, it is 

ORDERED as follows: 

1. The Motion is GRANTED. 

2. The Debtors are authorized, but not directed, to pay the Critical Vendor Claims of 

the Critical Vendors, upon the terms set forth in the Motion. 

3. Each Critical Vendor shall continue to provide services and products to the 

Debtors on similar terms that governed their relationship prepetition and as further set forth in 

the Motion, and absent such compliance, the Debtors shall have no further obligation to perform 

under the terms set forth in the Motion. 

2 Capitalized terms used in this Order and not otherwise defined herein shall have the meanings ascribed 

to such terms in the Motion. 

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4. Notwithstanding the relief granted herein and any actions taken hereunder, 

nothing contained herein shall constitute, nor is it intended to constitute, the Debtors’ assumption 

of any contract or agreement under 11 U.S.C. § 365. 

5. This Court shall retain jurisdiction with respect to all matters arising from or 

related to the implementation or interpretation of this Order. 

# # # 

Submitted by: 

Jordi Guso, Esq. 

BERGER SINGERMAN LLP 

1450 Brickell Avenue, Ste. 1900 

Miami, FL 33131 

Telephone: (305) 755-9500 

Facsimile: (305) 714-4340 

Email: jguso@bergersingerman.com

Copy furnished to: 

Jordi Guso, Esq. 

(Attorney Guso is directed to serve a signed copy of this Order upon all interested parties, and to 

file a Certificate of Service with the Court). 

9780469-3 

Case 20-14792-EPK Doc 127 Filed 05/20/20 Page 18 of 22
MASTER SERVICE LIST 

SECURED PARTIES 

Brookside Mezzanine Fund II, L.P. and 

Brookside Mezzanine Fund III, L.P. 

c/o Gregory Foy 

Brookside Mezzanine Partners 

201 Tresser Blvd.; Suite 330 

Stamford, CT 06901 

Brookside Mezzanine Fund II, L.P. and 

Brookside Mezzanine Fund III, L.P. 

c/o Doug Gooding, Esq. 

 Andrew J. Hickey, Esq. 

 Jonathan D. Marshall, Esq. 

Choate, Hall & Stewart LLP 

Two International Place 

Boston, MA 02110 

E-Mail: dgooding@choate.com 

E-Mail: ahickey@choate.com 

E-Mail: jmarshall@choate.com 

CANON FINANCIAL SERVICES, INC. 

158 Gaither Drive, Suite 200 

Mt. Laurel, NJ 08054 

E-mail: sosack@uccdirect.com

FAMAM STREET FINANCIAL, INC. 

5850 OPUS PARKWAY SUITE 240 

MINNETONKA MN 55353 

E-mail: LSTOA@farmamstreet.net 

LIST OF 20 LARGEST UNSECURED CREDITORS – NOT SERVED THROUGH 

CM/ECF 

THREE ATLANTA LLC 

550 PHARR ROAD, SUITE 900 

ATLANTA, GA 30305 

ATTN: NANCY APATOV 

U.S. FOODSERVICE INC. 

P.O. BOX 281838 

ATLANTA, GA 30384 

ATTN: HOLLY SIMMONS 

E-MAIL: 

HOLLY.SIMMONS@USFOODS.COM

AMERICAN EXPRESS CREDIT CARD 

P.O. BOX 650448 

DALLAS, TX 75265-0448 

ATTN: SUSAN BROOKS 

E-MAIL: 

SUSAN.W.BROOKS@AEXP.COM

SCALISI PRODUCE CO INC 

JACKT. SCALISI WHOLESALE 

963 STINSON WAY 

WEST PALM BEACH, FL 33411 

ATTN: JACK SCALISI 

E-MAIL: JACK@SCALISIPRODUCE.COM

 

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9749420-3

RSM US LLP 

5155 PAYSPHERE CIRCLE 

CHICAGO, IL 60674 

ATTN: FRANK COMPIANI 

E-MAIL: FRANK.COMPIANIRSMUS.COM 

IPFS CORPORATION 

24722 NETWORK PLACE 

CHICAGO, IL 60673-1247 

DOVE AIR CONDITIONING & REFRIG. 

INC. 

2581 JUPITER PARK 

DR # F 10 

JUPITER, FL 33458 

ATTN: SIMON LACHANCE 

ZENITH INSURANCE 

PO BOX 9055 

VAN NUYS, CA 91499-4076 

ATTN: KELLY BROWN 

EDWARD DON COMPANY 

2562 PAYSPHERE CIRCLE 

CHICAGO, IL 60674 

ATTN: RANDY BEIRD 

NIAGARA DISTRIB. INC. 

3701 N. 29TH AVENUE 

HOLLYWOOD, FL 33020 

ATTN: BENIS MONTERO 

PP OMNI VENTURES LLC 

2149 NORTH COMMERCE PARKWAY 

WESTON, FL 33326 

ATTN: JOSE RODRIGUEZ 

E-MAIL: JRODRIGUEZ@HLCOS.COM

2980 INVESTMENTS LLC 

6300 NE 1ST AVENUE, SUITE 100 

FORT LAUDERDALE, FL 33334 

ATTN: MARK STEIN 

E-MAIL: MARK@DIVERSIFIEDCOS.COM

FLORIDA POWER & LIGHT 

COMPANY 

GENERAL MAIL FACILITY 

MIAMI, FL 33188-0001 

PALM BEACH OUTLETS HOLDINGS LLC

C/O NEW ENGLAND DEVELOPMENT 

75 PARK PLAZA, THIRD FLOOR 

BOSTON, MA 02116 

ATTN: SARAH KUDISCH 

WEINGARTEN REALTY INVESTORS 

P.O. 2600 CITADEL PLAZA DRIVE 

HOUSTON, TX 77008 

ROYAL CUP INC. 

160 CLEAGE DRIVE 

BIRMINGHAM, AL 35217 

ATTN: RICKY PEREZ 

E-MAIL: 

RPEREZ@ROYALCUPCOFFEE.COM

EXCEL TRUST LP 

C/O SHOPCORE PROPERTIES 

10920 VIA FRONTERA, SUITE 220 

SAN DIEGO, CA 92127 

SAUL HOLDINGS LIMITED 

PARTNERSHIP 

7501 WISCONSIN AVE., SUITE 1500 

BETHESDA, MD 20814 

 

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9749420-3

HIGHWOODS REALTY LIMITED 

PARTNERSHIP 

3100 SMOKETREE CT STE 600 

RALEIGH, NC, 27604 

CORAL SPRINGS TRADE CENTER, LTD 

C/O AMERA PROPERTIES 

2900 UNIVERSITY DRIVE 

CORAL SPRINGS, FL 33065 

RK CENTERS 

17100 COLLINS AVENUE, SUITE 225 

SUNNY ISLES BEACH, FL 33160 

EQUITY ONE (FLORIDA PORTFOLIO) 

LLC, 

PARTNERSHIP (REGENCY CENTERS LP) 

2300 GLADES RD., STE 160W 

BOCA RATON, FL 33431 

REGENCY CENTERS CORPORATION 

ONE INDEPENDENT DRIVE, SUITE 114 

JACKSONVILLE, FL 32202-5019 

BRIAN BAST OF BAST CHEVROLET, 

INC. 

P.O. BOX 1610 

SEAFORD, NY 11783 

DIVERSIFIED COMPANIES 

6300 NE 1ST AVENUE, STE. 100 

FT. LAUDERDALE, FL 33334 

PR MERCATO, LLC 

720 E. MARKET STREET, SUITE 115 

WEST CHESTER, PA 19382 

DEVNULL OCOEE LLC 

C/O GRANDSTAFF COMMERCIAL 

MANAGEMENT, INC. 

4192 CONROY ROAD, SUITE 110 

ORLANDO, FL 32839 

RRP PALM BEACH PROPERTY LIMITED 

PARTNERSHIP 

C/O WS ASSET MANAGEMENT, INC. 

33 BOYLSTON STREET SUITE 300 

CHESTNUT HILL, MA 02467 

DDR SOUTHEAST FOUNTAINS, L.L.C. 

C/O DEVELOPERS DIVERSIFIED 

REALTY CORPORATION 

3300 ENTERPRISE PARKWAY 

BEACHWOOD, OH 44122 

SOUTHGATE MALL OWNER, L.L.C. 

3501 S TAMIAMI TRAIL, SUITE 747 

SARASOTA, FL 34239 

SPC REGENCY, L.L.C. 

2440 SE FEDERAL HIGHWAY, SUITE 600 

STUART, FL 34994 

THE VILLAGES OPERATING COMPANY 

3619 KIESSEL ROAD 

THE VILLAGES, FL 32163-0000 

THE VILLAGES OPERATING 

COMPANY 

C/O THE VILLAGES COMMERCIAL 

PROPERTY MANAGEMENT 

940 LAKE SHORE DRIVE, SUITE 200 

THE VILLAGES, FL 32162 

PALM BEACH OUTLETS I, LLC 

C/O NEW ENGLAND DEVELOPMENT 

75 PARK PLAZA, THIRD FLOOR 

BOSTON, MA 02116 

 

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9749420-3

WRI WELLINGTON GREEN, LLC 

PO BOX 924133 

HOUSTON, TX 77292-4133 

WOODFIELD REGENCY, INC. 

C/O CBRE, INC. AS PROPERTY MANAGER 

3998 FAU BOULEVARD SUITE 308 

BOCA RATON, FL 33431 

SERVICE VIA U.S. MAIL

INTERNAL REVENUE SERVICE 

P.O. BOX 7346 

PHILADELPHIA, PA 19101-7346 

Douglas R. Gooding 

Choate, Hall & Stewart, P.C. 

Two International Pl 

Boston, MA 02110 

William H. Henrich 

295 Madison Ave 20th Floor 

New York, NY 10017 

Jennifer D Raviele 

101 Park Ave 27th Floor 

New York, NY 10178 

Michael W. Reining 

Kelley Drye & Warren LLP 

101 Park Avenue, 27th Floor 

New York, NY 10178 

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