Full opinion text
MEMORANDUM AND ORDER MILLER, District Judge. On October 25, 1991, Associated Dry Goods Corporation (“ADG”) announced that the L.S. Ayres store it operates in the Scottsdale Mall in South Bend, Indiana would be closed as part of a company-wide reorganization. The mall’s owner, Massachusetts Mutual Life Insurance Company (“MassMutual”), brings this suit for temporary and permanent injunctive relief requiring ADG to continue to operate the Ayres store for the duration of the twelve years remaining on the Ayres lease. The motion for preliminary injunction was heard on January 9, 10, and 13, 1992. For the reasons that follow, the court concludes that the preliminary injunction should be granted. Courts ordinarily do not order one party to go through with a contract, because an award of damages for the breach of the contract usually gives the other party everything to which it is entitled. Here, however, the closing of the Ayres store will affect the plaintiff’s mall in ways that make an award of damages insufficient. If the Ayres store closes, it simply will not be possible to decide at a later trial what damages resulted from the store’s closing and what damages resulted from other factors. The lease’s language and surrounding circumstances strongly indicate that the parties to the lease intended the Ayres store to continue to operate as an anchor store during the entire term of the lease, and not just to pay rent. Keeping the Ayres store open may cost the defendant a great deal of money, but the plaintiff must post a bond to insure against that risk. On the other hand, a bond or a later award of damages cannot address the risk to the plaintiff if the injunction is denied. Courts ordinarily do not enter injunctions that will require the court’s long-term involvement, but frequent court involvement is unlikely in light of the Scottsdale Ayres store’s eighteen-year history and the defendant’s interest in its stores’ reputation. Even though no court ever has entered an injunction like the one sought here, the general rules concerning preliminary injunctions indicate that a preliminary injunction should be issued under the facts presented in this case. Accordingly, the court will grant the plaintiff’s motion for a preliminary injunction requiring the defendant to reopen the store and operate it at least until trial. The injunction will become effective when the plaintiff posts security in the amount of $1 million. I. The court has jurisdiction under 28 U.S.C. § 1332. MassMutual is a corporation organized and existing under the laws of Massachusetts, having its principal place of business in Springfield, Massachusetts. ADG is a Virginia corporation with its principal place of business in Missouri, doing business in Indiana as L.S. Ayres & Company. ADG is a wholly-owned subsidiary of May Department Stores Company, a New York corporation with its principal place of business in Missouri. A. On October 4, 1971, Ayres Department Stores, Inc. (ADG’s predecessor in interest) entered into a lease with an Ohio limited partnership, to lease portions of the Scottsdale Mall, which was in the developmental stage. The Ohio partnership contracted as landlord and Ayres Department Stores, Inc. contracted as tenant of the building known as the Ayres building. The lease provided for the landlord’s construction of an enclosed shopping center and gave the tenant additional rights to the mall and common areas as defined in the lease agreement. The term of the lease for the Ayres building commenced on August 1,1973 and terminates on January 31, 2004, with renewal options. The lease binds the original parties’ assignees and successors in interest. The plans and specifications for the construction of the Ayres building were prepared in accordance with the tenant’s specified designs; both the landlord and the tenant approved the plans and specifications. The base rental rate for the Ayres building is approximately $254,000 per year for the thirty year lease, a figure that remains constant throughout the lease term. ADG also pays the landlord dues for membership in the mail’s merchants’ association and is billed a variable annual sum for maintenance of the mail’s common areas. ADG also pays the real estate taxes on its building directly to the county treasurer, rather than to the landlord. ADG (or its predecessor) has operated a department store in its space at Scottsdale Mall since 1973. MassMutual is the current successor landlord under the lease, having accepted a conveyance of the shopping center and assignment of all leases in lieu of foreclosure effective February 27, 1991. ADG, having assumed the prior tenant’s obligation, is the Ayres building’s current tenant. Scottsdale Mall contains 658,000 square feet of gross leasable floor area on two levels. Scottsdale Mall has three anchor stores; Ayres, Montgomery Wards and Target. Ayres and Wards are on both levels, while Target has no second level. Tenants presently occupy 81% of the mall’s gross leasable floor area. The Ayres store occupies 109,700 square feet of floor space, almost one-sixth of the mail’s gross leasable floor area. If the Ayres store is vacated, the occupancy rate of the gross leasable floor area will be reduced to 63%. As measured by storefronts, Scottsdale has an occupancy rate of about 60%, with forty-seven of the 107 storefronts vacant. B. A second enclosed traditional regional shopping mall, University Park Mall, opened in the South Bend area around 1980, about seven and a half miles from the Scottsdale Mall. The two malls are in direct competition. According to ADG’s merchandising information, the areas from which its Scottsdale and University Park stores draw the majority of their customers overlap significantly. Scottsdale’s area of exclusive influence is a comparatively small, sparsely populated area. To date, University Park generally has been a more successful shopping mall than Scottsdale. University Park has a much higher storefront occupancy rate, is considerably more profitable based on sales per square foot, is much larger and has more anchor tenants (four), is newer, and attracts many more customers than Scottsdale. Ayres is the only department store to operate anchor stores at both Scottsdale and University Park, although the two malls have thirty-one non-anchor “specialty shops” in common. The decision to open the second store was made when the University Park Mall was being developed and was made by ADG’s predecessor in interest. Based on the relevant demographics, sales figures, and trends, ADG believes that the South Bend market cannot support two Ayres stores. ADG has made various marketing decisions based on the merchandising history of the two stores. It has found that higher-priced, higher-quality product lines do not sell as well at Scottsdale as at University Park. Accordingly, the two stores carry varying product lines, with the higher-priced, higher-quality product lines generally being more available at University Park, and lower-priced lines generally being more available at Scottsdale. ADG’s University Park Ayres store sells more than two and one-half times as much merchandise as its Scottsdale store. Sales per square foot at the University Park Mall are more than double that of the Scottsdale store and the gap is widening. The University Park store grew by 49% in volume of sales from 1984 to 1990, while the Scottsdale store’s volume of sales was $10.7 million in 1984 and 1990. The Scottsdale store realized profits of about $250,000 in 1988, about $200,000 in 1989, and about $320,000 in 1990. Although year-end figures for 1991 are not yet available, the Scottsdale store lost $120,000 during the “spring season” (February through July). ADG believes that the Scottsdale store has avoided yearly losses thus far only because of its efforts to reduce costs to a bare minimum, and that the University Park store is stronger because the University Park Mall is stronger. C. MassMutual placed a $17.3 million book value on the mall upon acquisition in 1991. In May, MassMutual contracted with the Dial Companies to manage the Scottsdale Mall, and Dial’s major tenant lease coordinator, J.F. Carter, telephoned May senior vice president in charge of real estate, Duane R. Vaughan, to introduce himself. Mr. Carter and Mr. Vaughan scheduled a meeting to discuss Dial’s future plans for the Scottsdale Mall. Mr. Carter and two Dial vice presidents later met with Mr. Vaughan during a trade show in Las Vegas. Dial presented its redevelopment plan for the Scottsdale Mall and Mr. Vaughan requested updates on the redevelopment plan. Mr. Vaughan does not remember seeing the materials presented to him; the court infers that Mr. Vaughan, who already was seeking a substitute tenant at Scottsdale, simply paid little attention. After that meeting, MassMutual allocated funds for the first phase of Dial’s redevelopment plan. Thus far, Dial’s marketing efforts have failed to sign any new tenants, although leases have been tendered to prospective non-anchor tenants; a few non-anchor tenants, known as “specialty shops”, have left Scottsdale since Mass-Mutual and Dial took over. On October 25, 1991, May (ADG’s parent company) held a press conference and announced it would close the Scottsdale store by the end of January, 1992 as part of a major reorganization. Neither Dial nor MassMutual knew of this decision until the public announcement. Mr. Vaughan testified that in light of the broader ramifications of the corporate reorganization, he could not disclose the plans to Dial before the public announcement. Mr. Carter tried to telephone Mr. Vaughan to arrange a meeting to discuss the reason for closing the Scottsdale store and to try to resolve the dispute. The meeting was cancelled twice due to Mr. Vaughan’s scheduling problems, and ultimately occurred on November 25. At that meeting, Mr. Carter and two other Dial representatives met with Mr. Vaughan in Dial’s Omaha offices. Mr. Vaughan rejected Dial’s proposals to keep the Scottsdale store open and operating. Mr. Carter told Mr. Vaughan that Dial was interested in seeking a resolution, but MassMutual would file legal proceedings if the matter remained unresolved in thirty days. Since the announcement of the intent to close the store, ADG has proceeded, according to a schedule prepared in November, to take the many steps necessary to close the Scottsdale Ayres store, including discontinuing all merchandise orders for the Scottsdale store, terminating contracts with parties subleasing or licensing floor space in the premises, transferring employees and offering early retirement to others, delivering “WARN” (plant closing) notices to employees, and disposing of most of its visual trade fixtures. ADG has neither slowed nor accelerated its closure schedule as a result of these proceedings. ADG also has represented to the public in advertisements that it was conducting a liquidation sale in connection with closing the Scottsdale store. As part of this process, ADG transferred $700,000 to $800,000 of “distressed” merchandise (or about 25% of the Scottsdale store’s December inventory) to its Scottsdale store in the first half of December. On December 20, ADG applied for a “removal of business” sale license from the county clerk’s office; all inventory shipments to the Scottsdale store ceased on that date. The license issued with an effective date of January 9, 1992. On December 26, merchandise worth approximately $3.8 million was in stock in the Scottsdale store, which was similar to the amount of stock maintained a year earlier, and ADG still retained all fixtures, visuals, and its full employee staff at the Scottsdale store. On December 26, ADG began a “Consolidation Sale” at the Scottsdale Ayres store. By January 13, merchandise totalling $2.9 million had been sold at the Scottsdale Ayres store; less than 23% of the December 26 inventory remained in the store. But for the intended closing, the store would have had between $3.5 million and $4 million in inventory; January and February are among the low times in the retail industry. The remaining inventory could not form the base for a re-stocked inventory. As of January 10, the Scottsdale Ayres store still had 75% of its fixtures and 10% of its visual fixtures; the rest had been discarded or sent to other stores, where other fixtures were discarded. Of six area sales managers, one had left the company and another plans to retire. One of its two sales support managers is still associated with L.S. Ayres, and only four of fifty-six regular associates intend to retire. The remaining sales associates have been transferred, await transfer, or hope to transfer to other stores, most to the University Park store. ADG anticipated closing the store on January 20. The parties agree that the requested injunction essentially would require ADG to open a new Ayres store at Scottsdale. These findings of fact are not intended to be complete. Additional facts are set forth where pertinent in the sections that follow. D. On December 27, MassMutual filed its Verified Complaint in the St. Joseph County Circuit Court, seeking preliminary and permanent injunctive relief and a temporary restraining order. The hearing on the motion for the temporary restraining order was set for January 3, 1992. On January 2, ADG removed this cause to this court and requested a continuance of the TRO hearing. The court denied the request for a temporary restraining order following an evidentiary hearing, due to the imminence of the scheduled January 9 hearing on the motion for preliminary injunction. ADG denies any present intention to stop paying rent at the Scottsdale store, but strongly denies that it has any lease obligation to operate a store at Scottsdale Mall. MassMutual contends that the lease requires ADG to operate a store in addition to paying rent, and asks this court to order it to do so. Section 23.16 of the lease provides that Indiana law shall apply. Because the contract was to be performed in Indiana, an Indiana court ordinarily would give effect to the contractual choice of law provision, Wood v. Mid-Valley, Inc., 942 F.2d 425, 426 (7th Cir.1991); Sullivan v. Savin Business Machines Corp., 560 F.Supp. 938 (N.D.Ind.1983), and the parties have not suggested any basis for applying the law of any other jurisdiction. Accordingly, the court will apply Indiana law to the substantive issues. Dyna-Tel, Inc. v. Lakewood Engineering & Manufacturing Co., 946 F.2d 539 (7th Cir.1991); see also Systems Operations, Inc. v. Scientific Games Develop. Corp., 555 F.2d 1131, 1143 (3rd Cir.1977) (state law provides source of rule of substantive elements of claim). II. A preliminary injunction’s purpose is to minimize the hardship to the parties pending the lawsuit’s ultimate resolution. Faheem-El v. Klincar, 841 F.2d 712, 717 (7th Cir.1988) (en banc). Although Indiana law governs the parties’ substantive rights in this diversity suit, federal law governs the issuance of a preliminary injunction. General Electric Co. v. American Wholesale Co., 235 F.2d 606, 608 (7th Cir.1956); Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 799 (3rd Cir.1989), at least in the absence of a state statutory bar to the relief sought. See Sims Snowboards, Inc. v. Kelly, 863 F.2d 643, 647 (9th Cir.1988). In this circuit, one seeking a preliminary injunction bears the burden of showing: (1) that the movant will suffer irreparable harm absent the preliminary injunction; (2) that the harm the movant will suffer absent injunctive relief is greater than the harm the defendant will suffer as a result of injunctive relief; (3) a reasonable likelihood of success on the merits; and (4) that the injunction will not harm the public interest. S.E.C. v. Cherif 933 F.2d 403, 407-408 (7th Cir.1991). An injunction is improper if the movant has an adequate remedy at law. United States v. Rural Electric Convenience Co-op., Inc., 922 F.2d 429, 432-433 (7th Cir.1991). The plaintiff must satisfy each of these elements. Somerset House, Inc. v. Turnock, 900 F.2d 1012, 1015 (7th Cir.1990). The court turns to each factor in turn. A. MassMutual has demonstrated that the closing of ADG’s Scottsdale Ayres store will cause MassMutual irreparable harm for which no adequate remedy exists at law. Even assuming that ADG continues to make all payments due to MassMutual under the lease, including real estate tax payments directly to the county clerk, the store’s closing will damage MassMutual significantly in a number of ways. 1. MassMutual has shown that the store’s closing will adversely affect the mall. The extent of the damage to the mail’s overall operation cannot be predicted with certainty, but damage certainly will ensue. The Ayres store attracts a more affluent customer than do the store’s other anchors; fewer customers of that sort will come to the mall to shop at Wards or Target. The reduction in customers coming to Scottsdale Mall will reduce the flow of customer traffic through the mall, reducing the sales business of all mall tenants. Those hardest hit will be the specialty shops that are geared to the more affluent customer and the shops located closest to Ayres. Evidence produced at the hearing indicates that a shopping mall is based on the concept of facilitating a unified and a compatible operation between the landlord, anchor tenants, and specialty shops. The specialty shops rely on the anchor tenants to draw a substantial portion of the customer base to the mall, and customers of any one place of business in a mall are potential customers of any of the other merchants in the mall. Testimony presented at the hearing establishes that the specialty shops at Scottsdale that cater to the more affluent customer benefit from the Ayres store’s presence at the mall. Testimony from owners and managers of such stores indicates that shoppers go to the mall in response to Ayres advertising and then go on to shop at those specialty stores. Testimony of persons intimately familiar with specialty shops that cater to the more affluent Scottsdale customer indicates that the anchors other than Ayres draw a generally less affluent customer to the mall. Observations of increased customer traffic in the mall during advertised Ayres sales corroborate those beliefs. Two scenarios are probable without the Scottsdale Ayres store: either fewer higher income customers will shop at Scottsdale, reducing those specialty shops’ gross sales, or those specialty shops will find it necessary to increase their own advertising efforts. Even if additional specialty shop advertising is successful, the expense of additional advertising will reduce the shops’ profits. If the upscale specialty shops suffer reduced gross sales, MassMutual’s rental income will suffer. All but four or five of the mail’s non-anchor tenants have lease arrangements whereby the tenant pays a minimum base rent, but pays a percentage of gross sales if sales reach a specified point. Thirteen non-anchor tenants paid mall rental on a percentage basis in 1991; an unspecified number of other non-anchor tenants fell just short of sales levels that would have required rent payment on a percentage basis. If the Ayres store’s departure causes specialty shops’ gross sales to fall, MassMutual will lose: (1) the additional percentage rent that previously successful non-anchor tenants, who have paid percentage rent in the past, would have paid in the years remaining on the Ayres lease; (2) the potential for increased percentage rent from increased future sales from those non-anchor tenants already paying percentage rent; and (3) additional percentage rent that other non-anchor tenants, who now pay the base rent, may have owed as a result of increased sales in coming years. Similarly, the closing of the Ayres store will prevent the mall from offering prospective new tenants a draw for the customer more likely to shop at an Ayres-like store than at Wards or Target. Accordingly, specialty shops that cater to the more affluent Ayres customer will be less likely to decide to enter the mall. If the upscale specialty shops simply maintain present sales by increasing their advertising, the cost of doing business at Scottsdale Mall will increase. Unchanged sales combined with increased costs reduce profits. If it becomes less profitable for specialty shops to operate, those shops may consider non-renewal of their leases at expiration or renegotiation, as the owner of one shop indicated at the hearing. Sixteen of the sixty-seven presently operating non-anchor stores’ leases, or more than one-third, expire in the next two years, a period in which it is highly unlikely that any replacement for the Ayres store could begin operating. All present non-anchors’ leases will expire during the twelve years remaining on the Ayres lease. Persons knowledgeable of some of the specialty shops, such as Richman Brothers, indicated that leases would not be renewed if the Ayres store leaves and no substitute anchor tenant is found quickly. Indeed, at least some specialty shops need not await their leases’ expiration before reconsidering continued operation at the Scottsdale Mall. The Lerner Shops lease provides that if any of the mall’s anchors ceases operation for twelve months, the tenant may terminate the lease on thirty days notice. The Sycamore Shops lease provides that if any anchor vacates and is not replaced within one year, the tenant may terminate on ninety days notice. The J. Riggins lease provides that if the Ayres store closes and is not replaced by a similar store within one year, the tenant may terminate on thirty days notice. The Nu-Vision lease provides that if 75% of the mall’s leasable area becomes vacant, the tenant’s rent abates; the Ayres store’s closing would produce a 64% occupancy rate at Scottsdale Mall, and the non-anchors whose leases expire in the next two years occupy another 6% of mall’s leasable area. Other non-anchor leases, such as that of Radio Shack, contain provisions allowing cancellation if an anchor closes. The possibility that non-anchor tenants will vacate is not remote: MassMutual received two termination notices during the week preceding the preliminary injunction hearing. 2. A second likely impact of the Ayres closing extends beyond the specialty shops who cater to the more affluent customer. Scottsdale Mall is arranged on an essentially east-west basis, with the Wards store on the east end and the Target store on the west end; the Ayres store is located in the center of the linear arrangement. Testimony at the hearing indicated that shopping malls should be designed so as to maximize customer traffic flow through the mall. The Ayres store’s closing probably will have a dramatic impact on the mall’s customer traffic. Shoppers no longer will exit the Ayres store on the mall’s first or second level and then turn east or west, passing specialty shops on the way to another anchor. Mall traffic will consist of (1) shoppers entering the mall at the west end, into or near the Target store, (2) shoppers entering the mall at the east end, into or near the Wards store, or (3) those who enter the mall to shop at a specialty store. Evidence at the hearing indicated that because the specialty shops rely on the anchors’ advertising to bring customers to the mall, the third group will be far smaller than the first two. Shoppers who enter the mall at either end will be less likely to move toward the mall’s middle if the Ayres store closes. Reduced customer traffic in the mail’s center probably will have the greatest impact on the sales of specialty shops located in the center of the mall; those shops will begin to close or leave at the expiration of their leases. As specialty shops in the mail’s center dwindle, shoppers will have even less reason to move toward the mail’s center, and more shops located there will close; shoppers are unlikely to walk great distances past empty shops to go to the more distant anchor. In essence, Scottsdale Mall would become two small malls, with a small number of specialty shops clustered near each operating anchor. Because the Target store only occupies one level, there would be few, if any, second-floor specialty stores at the Target end. 3. A third impact will be upon the mail’s image itself. As noted before, more than a third of the mall’s leasable area will be vacant if ADG closes the store occupying 107,900 square feet. All of the witnesses who expressed an opinion on the issue at the hearing agreed that a mall with a great vacancy rate faces far more difficulty in attracting shoppers and new tenants. Developments since ADG’s announcement demonstrate the accuracy of that testimony. Before the announcement of the intended closing, MassMutual was in negotiation for a fourth anchor, for an expansion of the mall’s theater from two screens to six screens, and for the development of a nine-vendor, 15,000 square foot food court. After the announcement, the prospective fourth anchor abandoned its interest in Scottsdale Mall, the theater expansion has been placed on hold pending re-negotiation, and the food court project has been suspended. None of these developments had culminated in an agreement before ADG’s announcement, and perhaps none would have done so, but the announcement’s impact on the talks demonstrates the damage to the mail’s ability to attract new tenants. As a result of ADG’s announcement, Mass-Mutual has virtually stayed its redevelopment plan for the mall. 4. ADG suggests that its closing actually may benefit the mall in the long term by allowing it to procure a new, more profitable tenant. It is true that were a new anchor found, the anchor lease’s rental provisions likely would be more favorable to the landlord than those contained in the 1973 Ayres lease. It also may be that if another anchor replaces the Ayres store, other specialty shops, more complementary to the new anchor, may replace the current non-anchors whose customer base mirrors that of the Ayres store; indeed, a new “tenant mix” ultimately could, conceivably, make the mall’s operation more profitable. ADG has demonstrated no likelihood, however, that a substitute anchor can be found for its Scottsdale store. Although the lease creates no obligation to do so, ADG itself has made inquiries of other potential anchors, starting as long as three years ago, but has met with no success. The May Department stores will not put another of their stores into the space. Due to the timing of ADG’s announcement and lack of prior notice from ADG, MassMutual was in no position to seek a replacement before ADG’s announcement. As a result, the Ayres space, even under the best of circumstances, will be vacant for several years. Credible evidence presented at the hearing indicates that the process of acquiring an anchor is a lengthy one. A business with interest in the project must be found; the potential anchor’s representatives must tour the facilities and the market and conduct feasibility studies; negotiations over the lease’s terms must occur; the potential anchor must develop architectural drawings for its use of the space; renovations must be made to the anchor’s specifications. If a substitute anchor were located tomorrow, the substitute anchor could not open its doors at Scottsdale before February 1994; in today’s economy, even that timetable is unlikely. As noted before, at least sixteen non-anchor leases will have expired by that time, and the mall’s customer traffic probably will have been drastically affected in the interim. Even after a new anchor begins business, a period of time is necessary for the new anchor to establish itself in the community. Ayres, the store the new anchor would replace, has been long known in Indiana and has enjoyed, at least before the closing announcement, a very good reputation in the state. If a new anchor could be found, customer traffic at the mall would reflect the time needed for a replacement anchor to establish its own reputation and customer confidence. In the meantime, Scottsdale would continue to lose customers, battling its reputation as a vacant mall. 5. Accordingly, MassMutual has shown that it will be injured if the Ayres store closes. To obtain a preliminary injunction, it must further show that the injury is irreparable. Scruggs v. Moellering, 870 F.2d 376, 378 (7th Cir.), cert. denied, 493 U.S. 956, 110 S.Ct. 371, 107 L.Ed.2d 357 (1989). In Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380, 386 (7th Cir.1984), the court explained this requirement as meaning that the plaintiff cannot wait until the end of the trial to get relief. MassMutual has satisfied that standard. The injury may well amount to the closure of the mall, except to the extent of the two remaining anchors and a few nearby specialty shops. Should this develop from non-renewal of non-anchor leases, it may not happen for several years; if it results from specialty stores becoming unable to survive financially, it may, as plaintiff’s expert Donald Harney suggested, happen within a year. If the former course is taken, damages will be unknown at trial unless the trial is unreasonably delayed; if the latter course is taken, Scottsdale virtually will have ceased to exist as a shopping mall. All of MassMutual’s loss will be financial. Loss of new tenants is compensable in damages equal to the profits Mass-Mutual would have made from those tenants; loss of rent from existing tenants is compensable in damages equal to the rents MassMutual would have received had ADG not closed its Scottsdale store; loss of rent due to closures and non-renewals by existing tenants is compensable in damages equal to the rents MassMutual would have received from those tenants had ADG not closed its Scottsdale store. The reduction in fair market value may be quantifiable, and ADG demonstrated that expert witnesses can be found who claim the ability to isolate a given cause. As noted above, preliminary injunctive relief ordinarily is inappropriate if damages are sufficient to remedy the injury of which a plaintiff complains. American Hospital Ass’n v. Harris, 625 F.2d 1328, 1331 (7th Cir.1980); see also Indiana State Board of Public Welfare v. Tioga Pines Living Center, Inc., 575 N.E.2d 303, 306 (Ind.App.1991) (Indiana law); Whiteco Industries, Inc. v. Nickolick, 549 N.E.2d 396, 399 (Ind.App.1990) (Indiana law). In other words, to obtain a preliminary injunction, MassMutual must show not only that it will suffer injury without the injunction; it also must show that an award of damages for those injuries would be an inadequate remedy. A damages remedy is inadequate if it would come too late to save the plaintiffs business, or if the nature of the plaintiffs loss makes damages-very difficult to calculate. Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d at 386; see also Classic Components Supply, Inc. v. Mitsubishi Electronics America, Inc., 841 F.2d 163, 165 (7th Cir.1988); but see Indiana State Dept. of Welfare, Medicaid Div. v. Stagner, 410 N.E.2d 1348, 1352 (Ind.App.1980) (Indiana law). To describe MassMutual’s damages as difficult to calculate seriously understates the circumstances presented at the hearing. Scottsdale’s present circumstances demonstrate that more is afoot than ADG’s plan to close the Scottsdale store. Mass-Mutual owns the mall today because it took the mall in lieu of forfeiture less than a year ago, when the prior owners were unable to meet their debt service from the mail’s cash flow. Although some stores such as Richman Brothers and Shifrin Jewelers have done well in recent years, forty-seven of the mail’s 107 non-anchor storefronts presently are vacant; the vacancy rate has doubled, more or less, in the past five years. Thus, even before ADG’s announcement, the mall’s short-term trend was toward non-renewal of non-anchor leases. Even MassMutual’s expert testified at the hearing that a 40% vacancy rate is unacceptable. Storefronts near the Ayres store on the mall’s second floor already are vacant, and specialty shops that appeal to the “upscale” customer, such as Gantos, The Gap, Gilbert’s, and Redwood & Ross, have closed their Scottsdale stores in the past several years. The present mall manager attributes the recent loss in leased square footage to a predecessor management company’s improper management and effort; a former manager of the mall believes the recent downturn was caused by uncertainty in development due to long-delayed decisions about a new highway near Scottsdale Mall. The Scottsdale Ayres store itself was among the three least profitable of the fifteen pre-consolidation Ayres stores; credible testimony was presented at the hearing that drastic cost-cutting was necessary to allow the store to show any profit in the past three years. On the other hand, projected 1991 sales of the non-anchor Scottsdale stores are expected to show a slight increase over 1990, which may show strength in the face of a recessionary economy. The Scottsdale Mall is located less than eight miles from a newer and far more successful shopping mall, University Park Mall. University Park, which has four anchors (Ayres, Sears, J.C. Penney, and Hudson’s), has a vacancy rate of 5%, compared to Scottsdale’s nearly 40%. ADG’s University Park Ayres store shows much higher sales per square foot, a phenomenon mirrored by other chains, such as Richman Brothers, that operate stores at both malls. Conflicting evidence was presented concerning the demography of the Scottsdale market. The average household income in the area immediately surrounding the mall was more than ■ a ■ third higher than the average for the eleven-county marketing area as a whole, and the councilmanic district in which the mall is located contains many of the city’s wealthiest neighborhoods. There has been recent commercial development in the area immediately surrounding Scottsdale, and new residential developments involving more than 2,500 housing starts are planned for the coming decade. A major highway recently was completed adjacent to the mall, linking the mail’s area to a city in an adjacent county with 45,000 people. On the other hand, no substitute anchor has been found despite these apparently favorable demographics. May’s experts believe that a population of 250,000 is needed to support one of its stores. Accordingly, a population of 500,-000 would be needed to support the two Ayres stores at Scottsdale and University Park. The core population of the South Bend metropolitan area is 250,000, although adjacent communities would expand that figure somewhat. Of that population, ADG’s studies of its charge account records indicate that the two stores’ primary trading areas share about 150,000 people, an unusually large overlap. The University Park store’s trading area has a considerably larger population than does the Scottsdale store. May’s experts believe the South Bend metropolitan market is too small to support two Ayres stores or two regional shopping malls. ADG presented evidence that Scottsdale Mall’s design and present tenant mix may be responsible for the mail’s troubles, with a one-story anchor (Target) located at one end of the mall and an assertedly confusing co-existence of an “upscale” department store (Ayres) and a discount store (Target) as anchors. MassMutual presented expert testimony to the effect that Scottsdale might “go dark” (close altogether) within a year of the Ayres store’s closing. Again, conflicting testimony was presented on this issue. ADG’s experts testified to several instances in which malls have lost anchor stores and continue to operate. Those instances seem easily distinguishable from the Scottsdale situation. Apart from malls that changed to off-price centers, the instances cited by ADG generally involved the closing of anchor stores (such as Miller & Rhoads, Wieboldt’s, Bonwit Teller) due to bankruptcy. The Ayres chain is not going bankrupt; ADG intends to continue operating an Ayres store at a nearby, competing shopping mall. ADG reports post-announcement comments from shoppers indicating that its customers will shop at University Park because they like Ayres. Thus, Scottsdale faces a double whammy: like the malls cited by ADG as having survived the loss of an anchor, Scottsdale will face the future with one fewer anchor store; unlike the malls cited by ADG, the customer base developed at the Scottsdale Ayres store will take its business to University Park. Nonetheless, each of the ADG experts testified that they were unaware of any regional shopping mall that went completely “dark” upon losing an anchor tenant, and MassMutual identified no example of such an occurrence. Under these circumstances, the court cannot find that Mass-Mutual has made the sort of “concrete showing” required to warrant injunctive relief due to Scottsdale’s probable future closure. See USA Network v. Jones Intercable, Inc., 704 F.Supp. 488, 491 (S.D.N.Y.1989). Even if the mall does not “go dark”, however, the plaintiff will suffer injury that is irreparable because it is immeasurable. Customers will be lost; present tenants will lose sales, reducing rent in some cases, causing non-renewal or failure in others; prospective tenants will shy away. Proof of the damages attributable to the Ayres store’s closing will be speculative. Any competent expert will be able to determine the loss to MassMutual between ADG’s closing announcement and the time of trial. Given the downturn already evident at Scottsdale before the announcement, however, the court is unpersuaded that any expert will be able to identify, with any degree of certainty, the portion of the loss attributable to the Ayres closing, as distinct from loss attributable to other economic and marketing factors. Further, unless trial is deferred for twelve years or the mall “goes dark” in the near future, any trial expert would face the further task of predicting the mall’s future performance and isolating the specific impact of the Ayres closing that future performance. The court is not persuaded that such testimony can be provided within the confines of the Federal Rules of Evidence. Accordingly, the court concludes that while MassMutual’s damages will be exclusively economic and that MassMutual has not made a sufficient showing that the mall will close altogether, MassMutual’s probable injury is irreparable, within the meaning of the Seventh Circuit case law, due to the extreme difficulty of establishing both causation and amount of damages. Other courts have so held in similar circumstances. In New Park Forest Associates II v. Rogers Enterprises, Inc., 195 Ill.App.3d 757, 142 Ill.Dec. 474, 552 N.E.2d 1215 (1990), the court found a sufficient allegation of irreparable harm in the closing of a mall tenant because each mall tenant contributes uniquely to the mail’s “total tenant mix” and operates to attract customer traffic to the common area. In Lincoln Tower Corp. v. Richter’s Jewelry Co., Inc., 152 Fla. 542, 12 So.2d 452 (1943), the court found that because the interests of the landlord and tenants were inextricably bound together, it would be impractical, if not impossible, to establish the landlord’s damages. See also Madison Plaza, Inc. v. Shapira Corp., 387 N.E.2d 483 (Ind.App.1979) (trial court found such irreparable injury); Grossman v. Wegman’s Food Markets, Inc., 43 A.D.2d 813, 350 N.Y.S.2d 484 (1973) (“There is also evidence, however, that a food store will draw people to a shopping center who will also patronize the other stores and that while the food shop is closed the business of the other stores will be diminished. There might well be damage to the other tenants while the food store remains vacant, and, if the vacancy extends over a long period of time, it is possible that a tenant might also vacate its premises with resulting damage to plaintiffs.”). Although it might be easier to attract a replacement anchor if the Ayres store continues to operate, a preliminary injunction would not spare the mall all of this injury. MassMutual’s expert conceded that tenant uncertainty will remain even if the Ayres store is ordered to remain open temporarily, and MassMutual’s planned redevelopment of Scottsdale will remain temporarily on hold. Thus, MassMutual may continue to suffer losses even during the life of the preliminary injunction it seeks. Nonetheless, while permanency would lessen the injury, MassMutual will suffer immeasurable damages without the preliminary injunction. B. To be entitled to injunctive relief, Mass-Mutual also must show that the irreparable harm it will suffer in the absence of a preliminary injunction is greater than the irreparable harm ADG would suffer as a result of the requested preliminary relief. Brunswick Corp. v. Jones, 784 F.2d 271, 273-274 (7th Cir.1986). Evidence produced at the hearing clearly establishes that a court-ordered reopening of the Scottsdale store would cost ADG considerable money. 1. Reopening the Scottsdale Ayres store will require expenditures of approximately $2.75 million in direct and immediate start-up costs. Obtaining new merchandise, fixtures, and employees to put the store in the condition that existed before the closing was announced will take anywhere from two to six months. The store will have no merchandise, aside from any remaining “distressed” merchandise, to sell for a period of six to eight weeks. It will take additional weeks or months to restock and reestablish the Ayres store as a full line department store. Fixtures and visual fixtures will have to be ordered. Leased operations—departments ADG leases to others rather than operating itself, such as a beauty salon, men’s shoes, Ticketmaster, and fine jewelry—would have to be reestablished. ADG has ordered no new inventory for the Scottsdale store. If a preliminary injunction is issued, the Scottsdale Ayres store must be virtually recreated from scratch. Low inventory levels customarily maintained at other stores and the lack of sufficiently detailed store inventory records would preclude the use of other stores’ inventory for a more rapid restoration of inventory at the Scottsdale store. ADG offered early retirement benefits to its employees under the consolidation plan; only four Scottsdale employees agreed to early retirement, but employees at other stores have taken early retirement, allowing ADG to place Scottsdale employees at those stores. Accordingly, even if former Scottsdale salespeople return to operate a reopened Ayres store at Scottsdale, ADG will have to hire additional employees elsewhere. Further, the larger consolidation plans involving May’s Famous-Barr stores have proceeded upon the assumption that the Scottsdale store would be closed. Accordingly, no arrangements have been made for merchandise buyers to stock a Scottsdale store; as of February 1, the responsibility for buying inventory will be transferred from ADG’s old Indianapolis Ayres headquarters to St. Louis, and the great majority of the buyers in St. Louis are unfamiliar with the Scottsdale store’s history and market. Presently, no buying for the Scottsdale store is occurring; ADG presently is buying merchandise for delivery to other stores in May or June. ADG’s Ayres distribution system also is being transferred from Indianapolis to St. Louis, where no arrangements have been made for distribution to Scottsdale. Buying and distribution arrangements have been made in St. Louis for the University Park store. Thus, a court-ordered reopening of the Scottsdale Ayres store would cost ADG approximately $2.75 million. That would not, of course, be the sole cost of reopening, because ADG would continue to incur the expenses associated with the operation of a 110,000 square foot department store; employees would have to be paid, health insurance provided, etc. An operating Scottsdale store also would provide ADG with income, and many of the expenses set forth above would constitute the cost of doing business. While ADG would spend money on inventory, some or all of that inventory will be sold at a price higher than its cost. While new fixtures would have to be purchased, ADG would use those fixtures in its business; many of the old fixtures are in use in other stores. Accordingly, although these expenditures are outlays ADG would not have to make in the absence of the requested preliminary injunction, many of the expenditures will prove to be revenue-producing to some extent. Further, many of the expenditures will have tax benefits to ADG; in light of the tax and depreciation benefits, ADG would recoup the entire start-up cost if the store made a profit of $340,000. In 1990, the store showed a $320,000 profit. Even assuming sharply reduced gross sales in light of the two to six months needed to reopen, it appears likely that ADG would recoup the start-up costs in two to three years. 2. If preliminary injunctive relief is granted and ADG ultimately prevails at the trial on the merits, the damage to ADG resulting from the preliminary injunction will be easily measurable. Apart from continuing rental obligations under the lease, all of ADG’s expenditures for the Scottsdale store will have resulted from the court-ordered reopening. If ADG loses money, no future fact-finder will have to divine whether it did so because of Scottsdale’s poor recent history, or because of Scottsdale’s poor competitive position in comparison to University Park, or because of the overall economy, or because of the mall owner’s poor performance in attracting tenants. ADG would not have been exposed to any of those concerns but for the preliminary injunction. A court balances the irreparable harm to the respective parties on a preliminary injunction motion. As ADG noted in arguing that MassMutual had not shown irreparable harm, purely economic loss ordinarily is not irreparable; an award of damages can make the party whole. The same argument applies with peculiar force to a defendant’s claim of irreparable harm from the issuance of the injunction: A harm so purely pecuniary—so readily quantifiable—from the grant of a preliminary injunction could in any event be prevented by requiring the plaintiff to post an injunction bond or equivalent security in accordance with Rule 65(c) of the Federal Rules of Civil Procedure, which makes such security mandatory.... Cronin v. U.S. Department of Agriculture, 919 F.2d 439, 445 (7th Cir.1990); see also Ohio Oil Co. v. Conway, 279 U.S. 813, 815, 49 S.Ct. 256, 257, 73 L.Ed. 972 (1929). Accordingly, in balancing the harm MassMutual would suffer absent injunctive relief and the harm ADG would suffer through injunctive relief, MassMutual’s immeasurable injuries are not to be weighed against ADG’s easily quantifiable monetary injuries. Artist M. v. Johnson, 917 F.2d 980, 991 (7th Cir.1990), cert. granted sub nom. Suter v. Artist M., — U.S.-, 111 S.Ct. 2008, 114 L.Ed.2d 97 (1991). ADG has shown that a preliminary injunction would require it to make expenditures totalling millions of dollars, expenditures that it otherwise would not make. That showing, however, does not affect whether the injunction should issue. Under the law of this circuit, it affects only the amount of the bond to be required as a precondition for the injunction. 3. ADG also contends that it would suffer nonmonetary damage to its reputation if it should be forced to reopen. The court is unpersuaded. ADG already has damaged the Ayres reputation by declaring its intention to walk out on the Scottsdale Mall. The court does not believe that reopening the Scottsdale store will cause any greater damage to ADG’s reputation with its Ayres customers. 4. MassMutual has shown that it will suffer substantial and irreparable injury in the absence of a preliminary injunction. ADG will suffer no injury that cannot be readily quantified and insured against by an appropriate bond. Accordingly, the balance of harms weighs heavily in MassMutual’s favor. C. To be entitled to a preliminary injunction, MassMutual also must demonstrate a reasonable likelihood of success on the merits. Kinney v. Pioneer Press, 881 F.2d 485, 491 (7th Cir.1989); Glen Theatre, Inc. v. Civil City of South Bend, 726 F.Supp. 728, 730 (N.D.Ind.1985). If no likelihood of success on the merits is shown, the preliminary injunction should be denied. Kellas v. Lane, 923 F.2d 492 (7th Cir.1991); Somerset House, Inc. v. Turnock, 900 F.2d at 1015. A plaintiff need not, however, depending upon the severity of the harm it will suffer if the injunction does not issue, demonstrate a high probability of success on the merits of its claim; it may suffice that the plaintiff’s chances are better than negligible. Ping v. National Education Ass’n, 870 F.2d 1369, 1371 (7th Cir.1989). The more heavily the balance of harm weighs in the plaintiff’s favor, the lower the degree of likelihood of success on the merits that is required of the plaintiff. Thornton v. Barnes, 890 F.2d 1380, 1384 (7th Cir.1989). As noted in the previous section, the balance of irreparable harms weighs heavily in MassMutual’s favor. MassMutual has demonstrated a realistic likelihood of success on the merits. ADG makes several challenges to the sufficiency of MassMutual’s showing on this element. ADG contends that the lease creates no obligation to continue the store’s operation. It also argues that MassMutual cannot prevail on the merits of its claim for permanent injunctive relief because of the traditional reluctance of courts of equity to order specific performance of commercial contracts or to enter orders requiring long-term judicial supervision. 1. In 1971, the parties’ predecessors entered into a 30-year contract. MassMutual contends, and Ayres denies, that the lease requires ADG to continue to operate its Ayres store at Scottsdale. In § 6.01 of the lease, ADG’s predecessor agreed to use the building during the lease’s continuance for the purpose of operating a merchandising business of the type it generally operates, and to do so in a high class manner. In § 6.02 of the lease, ADG’s predecessor agreed to be open for business when Wards and most other mall tenants are open, and to conduct its business with an eye toward the mail’s unified and compatible operation. In § 6.04 of lease, ADG’s predecessor agreed to spend at least 2% of its annual gross sales on advertising, making specific reference to the Scottsdale store, and agreed to advertise concerning shopping center events sponsored by the merchants’ association or some comparable entity. Section 18.01 of the lease requires ADG to join, and remain in good standing in, the merchants’ association. In § 6.08 of the lease, MassMutual’s predecessor gave ADG the right of approval of any tenant who sought to lease more than 20.000 square feet, and agreed not to allow such a tenant (other than Ayr-Way, now Target) to operate a general merchandise discount store. In § 12.01 of the lease, ADG’s predecessor agreed not to sublet its store or assign the lease without the landlord’s permission, except to a business successor. Section 17.01 of the lease provides that a default shall be deemed to have occurred if ADG should abandon the building. As noted above, Indiana law governs the substantive issues presented by the parties. Under Indiana law, a court must attempt to interpret a contract so as to give effect to the intent of the parties at the time they form the contract. The parties’ intentions are to be determined from the contract’s four corners. Estate of Saemann v. Tucker Realty, 529 N.E.2d 126, 129 (Ind.App.1988). If the parties’ intentions can be ascertained clearly by the contract language, Indiana courts recognize and enforce that agreement. Myers v. Myers, 560 N.E.2d 39, 43 (Ind.1990). The court must accept an interpretation that harmonizes the contract’s provisions, as opposed to one which causes conflict between provisions. First Federal Savings Bank of Indiana v. Key Markets, Inc., 559 N.E.2d 600, 603 (Ind.1990). Indiana recognizes the existence of express or implied lease covenants requiring a tenant to operate a store continuously and actively. An implied covenant may be found if (1) the obligation arises from the parties’ presumed intention as gathered from the contract’s language, or appears, from the contract as a whole, to be indispensable to give effect to the parties’ intent; and (2) it is so clearly within the parties’ contemplation that they deem it unnecessary to express it. Casa D’Angelo, Inc. v. A & R Realty, 553 N.E.2d 515, 521 (Ind.App.1990). Mr. Vaughan of ADG testified that the lease lacks the “magic words” necessary to create an obligation of continuous use of the premises; he testified that a reading of the entire lease allows one to glean ADG’s right to terminate its occupancy after the lease’s first five months of operation. Other Scottsdale tenants’ leases, including the lease of Lerner Shops, expressly require the tenants to operate stores continuously; the Ayres lease contains no such express language. ADG contends that §§ 6.01 and 6.02 are simply “purpose and use” clauses that only identify and limit the uses to which ADG may put the premises, and are not “continuous use” clauses. ADG argues that those provisions merely prohibit ADG from using the property for any other purpose, and do not require ADG to use the property for the identified purposes for the entire lease term. ADG argues that in Casa D’Angelo, Inc. v. A & R Realty Company, 553 N.E.2d 515, the Indiana Court of Appeals found that language similar to that of §§ 6.01 and 6.02 did not require continuous use of commercial premises. ADG is correct, but only to a point. In Casa D’Angelo, the court held that the trial court should have granted summary judgment to the tenant on the landlord’s claim for damages arising from the breach of an alleged “continuous use” provision. As ADG argues, the language at issue in Casa D’Angelo was similar to that found in the lease at issue here, but it was not identical: Use. Lessee shall use the premises for the operation of a restaurant facility and for no other purposes without first obtaining the written consent of Lessor thereof. * * . * * * * Business Hours. Lessee shall keep the leased premises open for business during normal business hours for a restaurant. 553 N.E.2d at 520. The court of appeals agreed with the tenant that the provisions merely restricted the tenant’s use of the property and did not affirmatively require it to operate a restaurant. The Casa D’Angelo clause did not contain the language, “during the continuance of this Lease”, found in § 6.01 of the AyresScottsdale lease. Resort to cases from other jurisdictions is not helpful on this issue. The AyresScottsdale lease does not contain anything as explicit as the clause at issue in New Park Forest Associates II v. Rogers Enterprises, Inc., 195 Ill.App.3d 757, 142 Ill.Dec. 474, 552 N.E.2d 1215 (1990) (“Tenant shall not vacate or abandon the Premises at any time during the Term”), but §§ 6.01 and 6.02 are more explicit than the clause found to require continuous use in Ingannamorte v. Kings Super Markets, Inc., 55 N.J. 223, 260 A.2d 841, 40 A.L.R.3d 962 (1970) (“to be used and occupied only for a supermarket for the sale of all kinds of foods, groceries, vegetables and refreshments, expressly excluding the sale of drugs, cosmetics, hardware, stationery, dishes, and on the premises bakery”). More importantly, the Casa D’Angelo court declined to decide whether the “business hours” provision of the lease established an obligation of continuous use. The landlord sought damages, and could establish damages only if the lease contained an implied covenant to generate percentage rent. The court specifically noted that the landlord did not rely on the restaurant’s operation to enhance the operation and value of its surrounding property; the landlord had only one other tenant, a fabric store that competed for limited parking spaces. 553 N.E.2d at 522. Thus, Casa D’Angelo differs from this case, both because the court looked for an implied covenant to generate percentage rent rather than a covenant of continuous use, and because the facts upon which the decision was based differed markedly from the circumstances surrounding one of three anchor stores of a large shopping mall. Nonetheless, the Casa D’Angelo court’s analysis provides considerable guidance. In determining the tests by which the case would be judged, the court wrote, Generally, courts in other jurisdictions have refused to find an implied covenant to generate percentage rent or to continuously operate, when the agreed base rent is substantial____ Conversely, when the base rent is insubstantial, the court have found such implied covenants ____ Although substantial rent has been defined as more than nominal rent—“the modern day equivalent of a peppercorn”[,] the current trend is to define substantial rent as a fair market value for the premises. However, the burden of showing that the agreed base rent is not a fair rental value is upon the lessor____ Finally, a few courts have found an implied covenant to generate percentage rent or to continue operation, even when the base rent is insubstantial, where the provisions of the lease and the surrounding circumstances at the time of its execution show that the parties intended the payment of continuous rent or the continuous operation of the tenant’s business to have been a substantial consideration for the lease. 553 N.E.2d at 521. ADG’s rent is insubstantial in 1992. ADG pays a monthly rent of $21,170, or $254,000 per year, for its 107,900 square foot store, about $2.32 per square foot. That rental payment has remained unchanged since occupancy began in 1973 and will continue unchanged until 2004. Perhaps due to lack of discovery, no evidence was introduced concerning the present fair rental value of other stores in Scottsdale or of stores of comparable size at other shopping malls. Nonetheless, the uncontradicted testimony of Scottsdale Mall property manager Jeffrey Taylor indicates that ADG’s rental obligation is well below market value. More importantly, the lease provisions and the surrounding circumstances at the time of the lease’s execution support the proposition that the parties contemplated continued use of the Ayres building. The developer personally negotiated the lease with ADG’s predecessor. The lease allowed ADG’s predecessor to direct the construction of its building to its specifications, provided ADG’s predecessor with a limited veto right over other mall tenants, and rendered its rental payments inflation-proof into the twenty-first century. On the basis of the record before the court, the proposition that the mall developers and financiers would construct a 109,700 square foot building to Ayres’ specifications, as part of a 658,000 square foot shopping mall, with the understanding that Ayres could abandon the mall any time after five months had elapsed, is preposterous. ADG argues that courts do not imply a covenant of continuous use in the absence of an agreement to pay percentage rent. The quoted language from Casa D’Angelo strongly suggest that Indiana law recognizes no such rule. Further, the anchor’s role in a shopping mall serves a function similar to an obligation to pay percentage rent. Although the anchor itself may have no such obligation, its operation populates the mall with shops and shoppers, producing additional income to the landlord. Should the anchor cease doing business at the mall, the effect to the landlord is the same: no payments are received in excess of the base rent, whether because the anchor tenant has no income on which a percentage rent provision could apply, or because the mall’s income wanes with the other shops and shoppers due to the anchor’s absence. Mr. Vaughan opined at the hearing that “nobody in their right minds” would agree to be bound to o