Full opinion text
MEMORANDUM OPINION MURRAY M. SCHWARTZ, Chief Judge. This class action for declaratory, injunctive, and monetary relief was brought against The Coca-Cola Company (“the Company”) by Coca-Cola Bottling Company of Elizabethtown, Inc. on behalf of itself and other unamended first-line Coca-Cola bottlers in the United States. By Order dated April 12, 1983 (Dkt. 155), 95 F.R.D. 168, as amended on April 27, 1983, 98 F.R.D. 254, (Dkt. 157), the Court certified two issues for determination and severed those issues for separate trial pursuant to Fed.R.Civ.P. 42(b). Those issues are: (1) the meaning of the term “sugar” as used in Paragraph 10 of two identical 1921 Consent Decrees, including whether the word “sugar” as used in that paragraph encompasses High Fructose Corn Syrup-55 (“HFCS-55”), and (2) the meaning of the term “market price” as used in paragraph 7 of those Decrees. Paragraph 10 of the Consent Decrees provides: The party of the second part [The Coca-Cola Company] contracts that the syrup sold and furnished by it to the party of the first part [the parent bottler] is to be high grade standard Bottlers Coca-Cola Syrup, and shall contain not less than five and thirty two one-hundredths (5.32) pounds of sugar to each gallon of syrup. Paragraph 7 of the Consent Decrees reads: It is agreed between the parties that the price of sugar is to be determined quarterly, January, April, July and October in each year, by averaging the market price of standard granulated sugar during the first week in such quarter, as quoted at the refineries by the ten refineries operating in the United States of America at the time, having the largest capacity and output. PX 4; PX 5. Since January, 1980, the Company has sweetened CocaCola with High Fructose Corn Syrup-55 (“HFCS-55”). Plaintiffs assert the term “sugar” as used in the Decrees means refined granulated sugar, i.e., sucrose. They contend that HFCS-55 is not “sugar” as that term is used in the 1921 Consent Decrees and that the Company is violating Paragraph 10 of those Decrees by using HFCS-55 in Coca-Cola Bottlers Syrup without their consent. The Coca-Cola Company argues “sugar” as used in paragraph 10 is a generic name for a family of complex carbohydrates which includes not only sucrose, but also fructose and glucose. Based on this interpretation, the Company insists it has the right to use HFCS-55 in Cola-Cola Bottlers Syrup without the bottlers’ consent. The second issue in dispute between the unamended bottlers and The Cola-Cola Company involves the meaning of the term “market price” of sugar as used in paragraph 7 of the 1921 Consent Decrees. Plaintiffs contend for purposes of paragraph 7 that market price is the average of the actual selling prices of the basis grade of refined granulated sugar being charged f.o.b. the ten largest refineries in the United States on sugar sold in wholesale lots for prompt shipment to industrial users during the first seven days of each calendar quarter, after the deduction of any rebates, discounts, or allowances (other than a two percent cash discount). Defendant counters “market price” means the publicly quoted or “list” prices announced by refiners to the entire trade prior to sale before any rebates, discounts, or allowances are negotiated by an individual purchaser. The Company has not restricted its definition to only those prices reflected on a published list; it has instead used the term more broadly to include those prices publicly quoted to the trade at large prior to sale, i.e., the price that would be published in a price list if the refiner issued a current price list at that given moment. The certified issues were tried by the Court between May 19 and June 13, 1986, without a jury, generating over 3400 pages of trial transcript. Testimony was given by fourteen witnesses, either through live testimony or by deposition. During the course of the trial plaintiffs tendered one thousand and forty-nine documentary exhibits; the Company tendered six hundred and forty-nine. The Court concludes: (1) “sugar” for purposes of paragraph 10 means refined granulated sugar from cane or beet, and therefore HFCS-55 is not sugar as that term is used in paragraph 10 of the 1921 Consent Decrees, and (2) for purposes of paragraph 7 the “market price” of sugar means an average of the price per pound for refined granulated sugar of the grade and in the packaging unit in which it is principally sold to industrial users f.o.b. the refinery, as made known to such industrial users upon inquiry prior to sale by the ten refineries in the United States with the largest capacity and output during the first seven days of each calendar quarter, less any discounts, allowances, or rebates from that price which are available to industrial users or are made known to them upon inquiry prior to sale, but not including a standard two percent cash discount or any individually negotiated discounts, allowances, or rebates. I. Background Facts Much of the historical background of the contractual relationship between The Coca-Cola Company and the bottlers of Coca-Cola is summarized in the 1920 opinion of the Court, Coca-Cola Bottling Co. v. The Coca-Cola Co., 269 Fed. 796 (D.Del.1920), and in other opinions of this Court, Coca-Cola Bottling Co. of Elizabethtown, Inc. v. The Coca-Cola Co., 95 F.R.D. 168 (D.Del.1982); Coca-Cola Bottling Co. of Elizabethtown, Inc. v. The Coca-Cola Company, 98 F.R.D. 254 (D.Del.1983). Some of that background is repeated here because it aids in understanding the resolution of the present controversy. In 1892 The Coca-Cola Company was formed to market fountain syrup. Dkt. 334 (Pretrial Order, Admitted Facts) 116 (hereinafter “Admitted Facts 11-”). The Coca-Cola bottling system began in 1899. On July 21 of that year Asa Candler, then president of The Coca-Cola Company, executed on behalf of The Coca-Cola Company a contract granting B.F. Thomas and J.B. Whitehead the exclusive right to engage in the business of bottling and selling Coca-Cola throughout all but eight of the United States. The contract obligated the Company to sell Thomas and Whitehead their requirements of Coca-Cola syrup at a fixed price. Admitted Facts ¶¶ 9, 10, 11, 12. In 1900 Thomas and Whitehead divided the territory between them. Admitted Facts ¶ 16. Thomas named his bottling company “Coca-Cola Bottling Company” (“the Thomas Company”). Admitted Facts 1Í18. Whitehead and his new partner J.T. Lupton entitled their bottling company “The Coca-Cola Bottling Company” (“the Whitehead-Lupton Company”). Admitted Facts WI 17, 19. These two companies became the primary “parent” bottlers. The two companies developed their respective geographic areas independently. They each contracted with local businessmen (“actual bottlers” or “first-line bottlers”) who built bottling plants, developed the market for bottled Coca-Cola, and sold Coca-Cola to customers in their exclusive territory. Admitted Facts Till 16-20, 24. The Thomas Company granted to its actual bottlers term contracts for two years, Admitted Facts ¶ 26; the Whitehead-Lupton Company granted contracts with no time limitation. Admitted Facts ¶ 105. In 1920 there were more than 300 bottlers in the Thomas Territory, Admitted Facts 1126, and approximately 800 in the original Whitehead-Lupton territory. Admitted Facts II25. The parents neither manufactured or transported the syrup nor bottled the final product, The Coca-Cola Bottling Co. v. The Coca-Cola Co., 269 Fed. at 801, 811-12; Admitted Facts 1123; that was exclusively left to the actual bottlers. Under the terms of the parent bottlers’ contract, the Company agreed to sell the parents their requirements of Coca-Cola Bottlers Syrup at a fixed price. The agreement also required that the “Coca-Cola syrup ... be used in proportions of not less than one ounce of syrup to eight ounces of water.” Admitted Facts ¶ 12. Refined granulated sugar was the principal and most expensive ingredient used in the manufacture of Coca-Cola syrup. PX 766 (AZ0605, AZ0609, AZ0610, AZ0611). The price of sugar had been in the range of 4.9 cents in 1899 when the contract was originally executed and 4.65 cents in 1907 when the fixed price of syrup had last been amended. PX 312. World War I severely affected the price and supply of sugar. Only the imposition of rigid price controls held the price of refined sugar at 9 cents per pound. Admitted Facts II50. After termination of federal price controls of sugar in September 1919, prices rose rapidly until they exceeded 23 cents per pound in May-June 1920. Admitted Facts II55. During the war years, sugar purchasers were assigned quotas under which they were allowed to buy only 50 percent of their sugar purchases made during a previous base period. Admitted Facts 1149. The Company responded by reducing the quantity of sugar used to sweeten Coca-Cola Bottlers Syrup, and by using sweeteners other than cane sugar. Admitted Facts H 53. In addition to reducing the quantity of its most expensive ingredient in Coca-Cola Bottlers Syrup, the Company sought price relief from the parent bottlers. In 1917 the parent bottlers voluntarily agreed to a temporary increase in the price of syrup to 97 cents per gallon because of the increase in the cost of sugar caused by the war. Admitted Facts 11 52. In November 1919, at the request of The Coca-Cola Company, the parent bottlers again agreed to a temporary price increase. Under this temporary agreement, which was to expire in February 1920, the parent bottlers agreed to pay the additional costs of manufacture for sugar purchased above 9 cents per pound, up to a maximum syrup price of $1.45 per gallon. At the Company’s request, this temporary agreement was extended until March 1, 1920. Admitted Facts 1111 56, 62. This agreement represented the first time the parties established a fluctuating price of syrup based upon the actual cost of any ingredient. Early 1920 witnessed the virtual disintegration of the previous harmonious relationship between The Coca-Cola Company and the parent bottlers. In its stead there developed a business relationship characterized by animosity, distrust, and hostility. In January 1920, sobered by the inflation during World War I and its aftermath, The Coca-Cola Company sought to relieve itself of the basic fixed-price contract with the parent bottlers, under which it was operating but for the temporary amendments. It proposed a fluctuating price tied to the total cost of production of Coca-Cola Bottlers Syrup. Admitted Facts ¶ 58; DX 47; PX 309; PX 1 (Coca-Cola Bottling Co. v. The Coca-Cola Co., 269 Fed. 796 (D.Del.1920), Transcript of Record at 2215-19 (hereinafter cited as “R.-”)). The parents cancelled a scheduled meeting on the Company’s 1920 proposal, stating they would not negotiate an amendment without definite, specific information as to the cost of manufacture. They conditioned the making of a counterproposal upon The Coca-Cola Company’s willingness to furnish a statement of the cost per gallon of manufacturing the syrup, so itemized that the parents could verify its correctness. Admitted Facts ¶ 59; DX 57. The Company responded by announcing that it regarded the parents’ contracts as terminable at will. Admitted Facts ¶ 60; PX 1 (R.2858). Further discussions floundered over the accuracy of the cost information provided by the Company’s accountants. Admitted Facts ¶¶ 59, 61; DX 55; DX 58. The parties eventually agreed to extend the temporary amendment, which provided for a pass-through of actual sugar costs above 9 cents per pound, while their representatives conducted negotiations. Admitted Facts 11 62; DX 59; PX 1 (R.1097-98). On February 11, 1920, the representatives submitted a joint report to the Company and to the parent bottlers. Their recommendation was as follows: the Company would acknowledge the contracts with the parent bottlers were perpetual; there would be a base price for syrup which would be priced according to the actual total cost incurred in manufacturing, the syrup plus equal profits for the Company and the bottlers; and the bottlers’ desire for verification would be served by placing the proportions of the various ingredients in a sealed envelope to be left with a representative of the parent bottlers and to be opened in the case of a dispute. Admitted Facts ¶ 63; DX 64. Although the parents were willing to accept the proposal, Admitted Facts ¶ 64, the Company rejected it, asserting: (á) the base price stipulated in the proposal was too low; (b) the profit to the parents was too great; and (c) the Company should not have to disclose the proportions of the ingredients in the formula for Coca-Cola. Admitted Facts 1165; DX 66. The Company countered with its own proposal of reduced profits for the parents and a straight adjustment for variations in the total cost of manufacture of syrup. As for verification, the Company agreed only to produce an audited statement from its accountants, stating that “the integrity and good faith of The Coca-Cola Company must be relied upon____” Admitted Facts 1165; PX 1 (R.1579); DX 66. Thereafter the Company rejected a parent’s proposal that it acknowledge the perpetuity of the parents’ contracts and withdraw its threats to terminate the contracts at will, PX 1 (R.72), in exchange for an extension of the 1919 temporary amendment. The parent bottlers responded on February 27, 1920 by notifying the Company that all negotiations were terminated, and that all temporary arrangements were cancelled as of March 1, 1920. After that date the parent bottlers demanded the Company carry out all aspects of its permanent fixed-price contracts with the parent bottlers, which were based on the 1907 price of sugar. Admitted Facts H 66. After notifying the bottlers on March 2, 1920 that their contracts “will stand terminated on May 1, 1920,” Admitted Facts ¶ 67; PX 343; PX 344, the Company on April 1, 1920 submitted a final settlement proposal. The Company offered to appoint the parents as agents and distributors, entitled to a royalty on each gallon distributed. Again the Company proposed a cost-plus arrangement, with the price to be adjusted semi-annually based on a sworn statement from the Treasurer of the Company itemizing specific elements of the Company’s costs. Admitted Facts ¶ 69; DX 67. The parents rejected this offer. Admitted Facts 1170; PX 368; PX 369. Faced with contract termination, on April 13, 1920, the two principal parent bottlers filed suit in Georgia state court seeking to enjoin the Company from terminating their contracts. Admitted Facts ¶ 72. Six actual bottlers intervened as plaintiffs. Admitted Facts ¶ 74. The Georgia suits were voluntarily dismissed on May 30, 1920, and were refiled on June 1,1920, in the United States District Court in Delaware. Coca-Cola Bottling Co., v. The Coca-Cola Co., D.Del. Case No. 388, PX 1 (R.5); The Coca-Cola Bottling Co., v. The Coca-Cola Co., D.Del. Case No. 389. PX 1 (R.5). The same first-line bottlers who had intervened in the Georgia cases intervened in the cases in this Court. PX 1 (R.80, 93). On June 10, 1920, the parties to the Delaware litigation agreed to entry of an order requiring the Company to supply the parent bottlers’ and actual bottlers’ requirements of Coca-Cola Bottlers Syrup during the pendency of the litigation. Under the terms of the Order, the price of the syrup paid by the actual bottlers to the parent bottlers was fixed at $1.72 per gallon for 5 months (until November 1, 1920), by which time it was anticipated a final decision on the applications for interlocutory injunctions would have been rendered. The Order further provided that if the final decision had not issued by November 1, 1920, the syrup price would be increased or decreased from the $1.72 level based upon increases or decreases in the Company’s actual costs of manufacture of the syrup. Admitted Facts II77. During the negotiations leading to the June 10 Order, it appears the Company failed to disclose fully that it had entered into substantial long-term sugar contracts at prices near the top of the market. The bottlers were given to understand, from representations made in an affidavit filed on June 7, 1920 by Charles H. Candler, then Chairman of the Board of The Coca-Cola Company, that the Company had favorable long-term sugar contracts “very much lower than the present market price.” PX 1 (R.1608). Charles Rainwater, in a letter to Candler dated January 14, 1921, recollected Candler’s statements to the bottlers: [Y]ou represented that The Coca-Cola Company had but one written contract, which expired in about three weeks, and one verbal contract, under which the market price each Monday morning was controlling. DX 105. See also DX 81 (Letter from J.B. Sizer, attorney for actual bottlers, to Crawford Johnson, Vice-President, Coca-Cola Bottlers’ Ass’n (Oct. 18, 1920)) (summarizing bottlers’ discussions leading to entry of June 10 Order); DX 87 (Letter from J.B. Sizer to Carl Rainwater, Secretary and Treasurer, Whitehead-Lupton Co. (Nov. 1, 1910)). Although the price of sugar dropped steadily from its peak in June, 1920, PX 311, see PX 449, the price of syrup to the parent and actual bottlers under the June 10, 1920 Order remained fixed. Thus, while competing soft-drink prices fell, PX 457, PX 461, PX 462, PX 520, PX 530, PX 557, the retail price of Coca-Cola remained high. PX 457, PX 485. Actual bottlers suffered a loss in sales volume. PX 457; PX 520; PX 530. The Chairman of The Coca-Cola Company reported that the Company’s total sales volume of syrup (which included both bottle and fountain syrup) declined 53% in September, 1920 and 50% in October, 1920, because of the high price of syrup. PX 485; Admitted Facts If 81. The bottlers expected relief on November 1, based on their understanding of the Company’s sugar contracts. Instead, with the market price of sugar continuing to fall, PX 311, PX 556, the Company announced a price increase for its syrup in November, 1920, Admitted Facts 1180; PX 470, in order to recoup the cost of its inventories of high-priced sugar. See PX 517; PX 542; PX 573. The Company also announced price increases in December, 1920, DX 95, and January, 1921. Admitted Facts ¶ 87; DX 107; DX 108; DX 110. The bottlers by agreeing in the June 10 Order to a price for syrup based upon the Company’s total manufacturing cost quickly discovered they had unwittingly exposed themselves to and insulated the Company from the hazards of the marketplace. The Company required the bottlers to pay for the Company’s poor judgment in overpurchasing high-priced sugar, while it continued to receive fixed profits per gallon of syrup. Both The Coca-Cola Company and especially the actual bottlers found themselves in a precarious economic position while maintaining an increasingly antagonistic negotiating posture. The Company represented its costs of manufacture under the June 10 Order had increased because of long-term sugar contracts at high prices. The parent bottlers, in disbelief, demanded verification of the Company’s figures. Admitted Facts ¶ 88. The bottlers’ audit revealed discrepancies, see DX 105, and the Company and the parent bottlers were unable to reconcile their figures or even agree on items of overhead to be included in the cost calculation. DX 111. When the Company in January 1921 announced an estimated February cost of manufacture of $1.85, DX 112, the bottlers took new action. In February, a parent bottler and actual bottlers filed supplemental complaints accusing the Company of fraud in the negotiation of and operation under the Order and sought appointment of a special master to determine the syrup cost under the terms of the Order. Admitted Facts ¶ 93. Prior to the filing of their Supplemental Complaint, the bottlers’ litigation and bargaining posture had been strengthened. On November 8, 1920, the District Court granted the parent bottlers’ motions for preliminary injunctions and enjoined The Coca-Cola Company from terminating the 1899 contract with the parent bottlers. Coca-Cola Bottling Co., v. The Coca-Cola Co., 269 Fed. 796 (D.Del.1920). The Coca-Cola Company appealed this ruling to the United States Court of Appeals for the Third Circuit. Admitted Facts 1182. Although there would be no ruling because the parties were destined to settle, it was the bottlers’ perception that the argument went very well for them. PX 601. Beginning in November 1920, settlement negotiations ensued. Admitted Facts II83. On June 24, 1921, the Company and the parent bottlers executed a Memorandum of Settlement. Admitted Facts ¶ 96. During July, 1921, The Coca-Cola Company entered into settlement agreements with the parent bottlers. These agreements were entered as Final Decrees of the United States District Court in Delaware in Case Nos. 388 and 389 on October 4, 1921. PX 4; PX 5; Admitted Facts ¶ 97. Between 1923 and 1975 the Company acquired all parent bottlers and assumed their rights and obligations to the actual bottlers. Among the rights assumed was the Thomas Company’s right to participate with the Company in the fixing of the market price of sugar. PX 33; PX 779 U Fourth (d). Admitted Facts ¶ 111; see also Coca-Cola Bottling Co. v. The Coca-Cola Co., 98 F.R.D. 254, 261 (D.Del.1983). In the late 1970s, more than five decades after the 1921 litigation was settled, the Company sought price relief from the pricing provisions of its bottling contracts with the actual bottlers, which were based on the 1921 Decrees. The Company commenced negotiations for amendments that would permit more flexible pricing in its contracts with all actual bottlers by partially severing the link between the price of syrup and the price of sugar. DX 492. The Amendment as eventually drafted created a new formula for pricing syrup using a “Sugar Element,” a “Base Element,” and the Consumer Price Index. PX 880; Tr. 2035-36, 2040-42 (Blanchard). The 1978 Amendment also contained a provision that in the event the Company modified the formula of Coca-Cola Bottlers Syrup to replace sugar with “another sweetening ingredient,” the resulting savings would be passed through to amending bottlers. PX 880 111(c). The vast majority of bottlers signed the Amendment. The 42 actual bottlers identified as plaintiff-intervenors at the time of trial of this matter all declined to amend their contracts. Complaint ¶ 35. These unamended bottlers have continued to operate under _ bottlers’ contracts essentially unchanged (for purposes of this litigation) from the agreements reached in 1921. Complaint ¶ 32; see 98 F.R.D. at 261. In January, 1980, the Company announced it would sweeten Coca-Cola Bottlers Syrup with a mixture of 50 percent HFCS-55 and 50 percent sucrose, PX 909, and eventually 100 percent HFCS-55. Syrup sweetened in this manner was sold thereafter to all bottlers, including unamended bottlers. PX 906; PX 903. The Company continues to price Bottlers Syrup to unamended bottlers in what it argues is full compliance with Paragraph 7 of the unamended contracts and the 1921 Consent Decrees, using the prices quoted by refiners for granulated cane sugar by the eight largest cane refineries during the first seven days of each calendar quarter. Tr. 2755-58 (Konzal). The Company prices Bottlers Syrup to amended bottlers in accord with the amended contract, passing through the savings achieved by the use of HFCS-55. Tr. 2110-27 (Blanchard); 3239-45, 3278 (Schmidt). Even with those savings, amended bottlers have paid more for their syrup than non-amenders in each quarter since the Amendment became effective because of the revised price formula. Tr. 3228-3262 (Schmidt); DX 646; DX 647; DX 649. Plaintiffs filed this litigation in February, 1981, within one year of the Company’s refusal to comply with the bottlers’ demands that the Company either comply with paragraph 10 of the 1921 Consent Decrees by supplying the unamended bottlers with Coca-Cola Bottlers Syrup that contains not less than 5.32 pounds of sugar or pass on the savings from its use of high fructose corn syrup as a sugar substitute. II. Governing Law A. Standing The Coca-Cola Company has raised a threshold issue of whether the bottlers have standing to enforce the 1921 Consent Decrees. This issue does not touch upon the question of constitutional standing, see Allen v. Wright, 468 U.S. 737, 750-51, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984) (doctrine of standing derives from Article III requirement that federal courts may adjudicate only actual “cases” and “controversies”), but is here interposed in the nature of a contractual defense. The 26 bottlers in the former Whitehead-Lupton territories claim standing to enforce the Consent Decrees as members of the class of intervening bottlers in the 1920 litigation. The 18 bottlers in the former Thomas territories assert standing because their interests were represented by the intervening bottlers, whose litigation fees they helped pay. All of the plaintiffs also claim standing as third-party beneficiaries of the 1921 Consent Decrees. Defendant disputes the third-party-beneficiaries argument, and further contends the Thomas bottlers have no standing to challenge the determination of “market price” because their contracts contain an express provision reserving determination of market price to the Company and the Thomas Company (which was acquired by the Company in 1975). PX 33 ¶[ Fourth (d); PX 779 it Fourth (d) (“the fixing of that market price shall be as determined by the party of the first part [the Thomas Company] and The Coco-Cola Company”). None of these standing issues should be addressed at this time, for the question before the Court is the proper interpretation of certain terms found in the Consent Decrees. The issues of breach and damages with respect to the individual contracts have been severed for separate discovery and trial. The question of each plaintiffs ability to sue for enforcement of their rights is properly reserved until the individual contracts are at issue. B. Law Applicable to the Construction of Consent Decrees The litigants are in virtual agreement on the general principles of law governing interpretation of consent decrees. Consent decrees have attributes of both judgments and contracts. While they are arrived at by negotiations between the parties ..., they are motivated by threatened or pending litigation and must be approved by the court____ Because of this dual character, consent decrees are treated as contracts for some purposes but not for others. United States v. ITT Continental Baking Co., 420 U.S. 223, 236-37 n. 10, 95 S.Ct. 926, 934 n. 10, 43 L.Ed.2d 148 (1975). The Supreme Court has summarized the legal principles governing the interpretation of consent decrees: Since a consent decree or order is to be construed for enforcement purposes basically as a contract, reliance upon certain aids to construction is proper, as with any other contract. Such aids include the circumstances surrounding the formation of the consent order, any technical meaning words used may have had to the parties, and any other documents expressly incorporated in the decree. Such reliance does not in any way depart from the “four corners” rule of [United States v.] Armour [& Co., 402 U.S. 673, 682, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971)]. The most fundamental principle of contract construction is to ascertain the intent of the parties. See, e.g., Coca-Cola Bottling Co. v. The Coca-Cola Co., 269 Fed. at 804. A court should consider the agreement as a whole, putting itself in the position of the parties. Radio Corp. of Am. v. Philadelphia Storage Battery Co., 23 Del.Ch. 289, 6 A.2d 329, 334 (1939). The first task is to look at the express terms of the contract itself. Restatement (Second) of Contracts § 203(b) (1981); see also United States v. Armour & Co., 402 U.S. 673, 682, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971) (scope of consent decree to be discerned from “four corners” of document). A court may also look to other indicia of the parties’ intent. These include the circumstances surrounding the making of the contract, the purpose of the parties, the course of performance under the contract, and trade usage. Restatement (Second) of Contracts § 202(1), (4). In applying these principles, a court must guard against inadvertently reforming a contract “under the guise of construction” by “looking too intently for' means of bringing about some ultimate good, thwarting an apparent wrong, or preventing hardship____” Coca-Cola, 269 Fed. at 805. The parties are presumed to have used words according to their ordinary or “generally prevailing meaning,” although “technical terms and words of art are given their technical meaning when used in transactions within their technical field.” Id. § 202(3). In determining intent, a court is to give course of performance greater weight than prior course of dealing, and prior course of dealing greater weight than trade usage. Id. § 203(b). Cognizant both of these rules of construction and of the antagonistic course of dealing which preceded the 1921 Consent Decrees, attention is now turned to ascertaining the meaning of “sugar” as used, in paragraph 10 of the Consent Decrees and the meaning of “market price” as used in paragraph 7. III. The Meaning of “Sugar” in Paragraph 10 Paragraph 10 of the 1921 Consent Decrees reads as follows: 10. The party of the second part [the Company] contracts that the syrup sold and furnished by it to the party of the first part [the Parents] is to be high grade standard Bottlers Coca-Cola Syrup, and shall contain not less than five and thirty-two one-hundredths (5.32) pounds of sugar to each gallon of syrup. PX 4; PX 5. At issue is the meaning of the term “sugar” as used in paragraph 10, and whether that definition includes HFCS-55. Dkt. 155 (Apr. 12, 1983 Order) (certifying issues). Plaintiffs contend “sugar” as used in paragraph 10 means refined granulated sugar (sucrose). Dkt. 364 ¶ 261. HFCS-55 lies outside that definition. Defendant argues the term means any sugar of the generic class of sweet carbohydrates that meets the Company’s high quality standards. Dkt. 362, at 3. Under that definition, HFCS-55 is “sugar.” The conflicting theories of each party are sufficiently plausible to require the Court to look beyond the face of the Consent Decrees. Having examined the text of the Consent Decrees, usage of the term “sugar” by the parties and in general commerce when the settlement was signed, the context of the settlement, the implicit purposes of the parties in paragraph 10, and post-settlement usage and course of performance, the Court finds the term “sugar” in paragraph 10 means refined granulated sucrose from cane or beets and does not include HFCS-55. A. The Face of the Consent Decree The starting point in interpreting a contractual provision must be the face of the document itself. Although the term “sugar” is not explicitly defined in paragraph 10, the application of basic rules of construction to the face of the Consent Decrees strongly suggests that the term as used there means refined sugar from cane. A contract should be interpreted as a whole. Coca-Cola Bottling Co. v. Coca-Cola Co., 269 Fed. 796, 805 (D.Del.1920); Restatement (Second) of Contracts § 202(2) (1981). Words used in one sense in one part of a contract are presumed to have been used in the same sense in another part of the same document. Radio Corp. of Am. v. Philadelphia Storage Battery Co., 23 Del.Ch. 289, 6 A.2d 329, 334 (1939); Wyckoff v. Garrison, 43 Del.Ch. 465, 237 A.2d 139, 142 (1967). In the Consent Decrees, the term “sugar” is used without modification four times: once each in paragraphs 5, 6, 7, and 10. The more explicit phrase “standard granulated sugar” also appears in paragraph 7. References in paragraph 7 to the market price of sugar at the ten largest “refineries” suggest the parties meant “refined granulated cane sugar” when they used the word “sugar.” See Tr. 734-35 (Mount) (cane sugar refined at “refineries”), 2933 (Mount) (beet sugar refined by “processors”); Tr. 2794-96 (Konzal) (cane refinery; beet processing plant). There is no question the meaning of “sugar” in paragraphs 5, 6, and 7 is consistent. In claiming “sugar” in paragraph 10 has a much broader meaning, the Company must rebut the common-sense presumption that the same word in the same document means the same thing. B. Commercial Meaning of “Sugar” Before Settlement A presumption also exists that parties to a contract used words according to their ordinary meaning. See ITT Continental, 420 U.S. at 234-35, 95 S.Ct. at 933 (citing United States v. Armour & Co., 402 U.S. 673, 678, 91 S.Ct. 1752, 1755, 29 L.Ed.2d 256 (1971) (language “taken in its natural sense”); United States v. Atlantic Refining Co., 360 U.S. 19, 23, 79 S.Ct. 944, 946, 3 L.Ed.2d 1054 (1959) (“normal meaning”); Hughes v. United States, 342 U.S. 353, 356, 72 S.Ct. 306, 307, 96 L.Ed. 394 (1952) (“wording would make most persons believe”)). Restatement (Second) of Contracts § 202(3)(a). The “ordinary meaning” of a word may differ, however, according to the context. Technical terms and words of art must be interpreted according to their usage in a trade when used among parties in that trade. Radio Corp., 6 A.2d at 334; Restatement §§ 202(3)(b), 222. The appropriate inquiry here, therefore, is the common meaning of “sugar” in the 1921 bottling trade. In 1921 the industry knew “sugar” could refer to more than sucrose. See DX 12 (Nat’l Bottlers’ Gazette, Feb. 5, 1918, at 71-73); DX 32 (Nat’l Bottlers’ Gazette, Feb. 5, 1919, at 108). The broad chemical definition was not commonly used in the trade, however. See, e.g., DX 12, at 71 (“Sugar is really a sort of family name — which is not the popular idea.”). Sucrose was the preferred sweetener and was “the familiar sugar of commerce.” Tr. 1776, 1777 (Shallenberger). Government regulations rationing sugar during World War I defined “sugar” as “the manufactured product, ‘sucrose,’ ” PX 137. This definition included refined cane and beet sugar, id., and excluded molasses, corn syrup, grape sugar, cerelose, maple sugar, and refiners’ syrups. PX 150. Various industry and government publications discussed the use of sugars including com syrup, corn sugar, maltose syrup, honey, and refiners’ syrup as “sugar substitutes” for “ordinary sugar.” See, e.g., DX 12; DX 15; DX 16 (Nat’l Bottlers’ Gazette series, “Sugar Substitutes in Bottled Soft Drinks”); PX 145; PX 146; PX 147; PX 149; PX 151; PX 152; PX 153; PX 154; PX 157; PX 160; PX 163 (“The very BEST Sugar Substitute is — CORN SIRUP [sic].”); PX 167; PX 190; PX 193; PX 194; PX 261; PX 262; PX 279; PX 439. Bottlers adding a substitute to sucrose were cautioned that federal law required them to clearly label their products as containing both “sugar” and the substitute. See, e.g., PX 153 (U.S. Dep’t of Agriculture release); DX 12, at 73; DX 15; PX 146; PX 147; PX 152; PX 154; PX 160; PX 163; PX 190; PX 194; PX 279; PX 439. The Court concludes the industry practice at that time was to use a modifier or specific term when referring to sugars other than sucrose. The 1921 bottling trade for the most part used “sugar” standing alone to refer to sucrose from cane or beet. But see DX 32 (defining “sucrose” as cane sugar). The next question is whether the parties to the Consent Decrees were aware of this industry usage. It is reasonable to assume that businessmen in the soft-drink trade would receive publications and notices directed to the trade and would be aware of the common industry definition of “sugar.” Several specific uncontroverted facts, however, make it unnecessary to rely entirely on this assumption. Many bottlers corresponded with the USDA regarding “sugar substitutes.” See infra p. 1400. See also PX 707 and 708 (1922 correspondence between a congressman and bottler). A copy of the 1918 rationing regulation, which defined “sugar” as sucrose, was produced from the files of Harold Hirsch, general counsel for the Company at the time of the 1920 litigation. See Dkt. 364 ¶ 266; PX 137. Parent bottlers received notice of this regulation from the Company and forwarded it to the actual bottlers. PX 162. Also produced from the files of Harold Hirsch were a copy of the USDA labelling release, PX 153, and copies of articles cited earlier discussing sugar substitutes. PX 152; PX 194; PX 208; PX 209; PX 232. I conclude the parties to the Consent Decrees were aware of industry usage of the term “sugar” to refer to granulated sucrose. C. Contemporaneous Usage by the Parties Industry usage does not control if the parties to the Consent Decrees had a different definition in mind with regard to the use of the term in paragraph 10. While the industry may have referred to both cane sugar and beet sugar as “sugar,” the parties clearly meant only cane sugar. It is plain that the parties did not use the term “sugar” to refer to sugar derived from corn. Sucrose, and more particularly sucrose from cane, was the preferred sweetener in the industry. Tr. 1776-77 (Shallenberger) (sucrose); DX 22, at 86 (cane); DX 32, at 108 (cane). Substitute sweeteners used by the Company during the World War I period proved unsatisfactory. PX 189; PX 287; PX 708. Many Coca-Cola bottlers corresponded with the U.S. Department of Agriculture regarding “sugar substitutes.” See, e.g., PX 179; PX 181; PX 182; PX 183; PX 184; PX 185; PX 203; PX 216. Among these bottlers was the Birmingham Coca-Cola Bottling Co., whose founder, Crawford Johnson, was Chairman of the Special Committee of the Coca-Cola Bottlers’ Association and an intervenor in the 1920 litigation. PX 185; PX 198. In 1922, a bottler who was a member of the Coca-Cola Bottlers’ Association “Executive Counsel” [sic] (see PX 584) likewise distinguished “sugar” from the “substitutes” suggested by the government during the war. PX 708. Charles H. Candler, former Company president and chairman of the board, stated in a manuscript autobiography that the Company was “not permitted to buy as much sugar as we needed” and referred to “corn syrup, glucose, invert sugar, etc.” as “sugar substitutes.” PX 711 at p. 64. The same meaning was evident in documents relating to the 1920 litigation. See PX 462 (letter from J.B. Sizer, attorney for actual bottlers, concerning competitive impact on bottlers of the fall of “sugar” prices); PX 3 (intervenors’ petition, citing “sugar” prices); PX 3 (Company’s answer p. 3, referring to “market price of sugar suitable for the manufacture of COCA-COLA syrup”). Particularly persuasive is the apparent genesis of the requirement in paragraph 10 of “five and thirty two one-hundredths (5.32) pounds of sugar.” The Third Affidavit of Charles H. Candler, filed in this Court on June 7, 1920, states: Deponent says that during his connection with The Coca-Cola Company of Georgia it was part of his [Candler’s] duty to keep himself informed as to the price of granulated sugar; that sugar is one of the main ingredients of CocaCola____ Deponent says that it has been a part of his duty in manufacturing Coca-Cola to keep himself acquainted with the cost of manufacturing the same. Deponent says that fifty-one and one-half (5lV2%) per cent, by weight of each gallon of Coca-Cola is sugar, there being in each gallon of bottling Coca-Cola Syrup five and thirty-two one-hundredths (5.32) pounds of sugar. PX 1 (R.1605-06) (emphasis added). In a settlement proposal dated February 5, 1921, Charles V. Rainwater, representing the parent bottlers, stated: “Our proposition is ... that the future price shall be on a sliding scale of the price of sugar alone figured upon the basis of 5.32 pounds of standard granulated sugar to the gallon of syrup____” PX 557 (emphasis added). Paragraph 10 of the agreed-upon settlement provides the syrup “shall contain not less than five and thirty-two one-hundredths (5.32) pounds of sugar to each gallon of syrup.” PX 4; PX 5. Defendant has cited no documents contemporaneous with the negotiation or entry of the 1921 Consent Decrees in which any of the parties used the term “sugar” standing alone to refer to corn syrup, glucose, or any sweetener derived from corn. HFCS55 was not yet developed. While beet sugar was, like cane sugar, subject to rationing during the war and was often referred to as “sugar” in the trade, the Court finds the parties did not intend to include beet sugar within the meaning of “sugar” in paragraph 10. Sucrose processed from sugar beets was not an acceptable sweetener at that time because the refining procedure tended to allow certain impurities to remain which could cause bottle syrup to sour. See PX 741, at 4; see also DX 22, at 86; DX 24, at 74; PX 238. Granulated sucrose from sugar cane was therefore used by The Coca-Cola Company in the manufacture of Bottlers Syrup. PX 741, at 4. While not controlling, the opinion of John M. Mount, a former Director of the Purchasing Department at the Company and Senior Vice-President upon his retirement in 1981, with regard to the term “sugar” in paragraph 10 is nonetheless instructive: “Sugar in 1921, I believe, as I have read part of the decrees, not having been there, probably meant to refer to sucrose produced from raw cane sugar at that time____ In my reading and interpretation, no, it didn’t [“refer in the context of 1921 to any corn sweetener”]. Tr. 221-22 (II Mount Dep. 265-66). I conclude the parties used the terms “sugar” and “standard granulated sugar” interchangeably to refer to high quality granulated cane sugar, and did so in the Consent Decrees. D. History and Purpose of Consent Decrees The history and purpose of the 1921 Consent Decrees provide evidence consistent with the Court’s finding that the parties used the term “sugar” in paragraph 10 to refer to granulated cane sugar. The Court rejects defendant’s theory that paragraph 10 was intended solely as a quality control provision, and that therefore the term sugar was used in its broad generic sense. While paragraph 10 had a quality control objective, it was also intended to supplement the pricing provisions of paragraphs 5, 6, and 7. Paragraph 10 does address quality control. The Company in that paragraph promises the syrup sold by it to parent bottlers will be “high grade standard Bottlers Coca-Cola Syrup, and shall contain not less than five and thirty-two one-hundredths (5.32) pounds of sugar to each gallon of syrup.” PX 4; PX 5. Quality was addressed by the requirement of “high grade standard Bottlers Coca-Cola Syrup” and the requirement of at least 5.32 pounds of sugar. The Company’s theory that quality control was the sole focus of paragraph 10, however, does not withstand scrutiny. It is highly improbable that parent bottlers concerned about quality would insist on a precise minimum amount of “sugar” but would be wholly indifferent to what sort of “sugar” is used. Moreover, there is no reason to assume at least 5.32 pounds of a substitute “sugar” would be needed to assure high quality Bottlers Syrup. Paragraph 10 is best explained as both a quality-control and price-protecting provision. As recounted earlier, see supra pages 1394-95, the actual bottlers suffered financially during the period when the price of Coca-Cola Bottlers Syrup was much higher than the syrup prices paid by their competitors. In addition, both the actual bottlers and the parent bottlers were antagonistic toward and distrustful of the Company. It is against this background of hostility and distrust that the parties drafted paragraph 6 of the Consent Decrees, which states in pertinent part that: 6. In order to promote the sale of Coca-Cola and enable the actual bottlers to compete with other beverages, the party of the first part [the parents] hereby agrees to sell such syrup to the bottlers purchasing from it at not exceeding one dollar and thirty cents ($1.30) per gallon, including five cents (5$) per gallon for advertising matter to be delivered, and an additional six cents (6c) per gallon for such syrup for each advance of one cent (lc) per pound in sugar above seven cents (7c) per pound, and on the same basis for a fractional advance____ PX 4; PX 5. The express competitive-pricing rationale recited in paragraph 6 for tying the price of syrup to the price of sugar at a six-to-one ratio is undermined if the Company can use a cheaper sweetener but continue to employ the paragraph 6 pricing mechanism. The requirement of 5.32 pounds of sugar in paragraph 10 ensures the Company cannot evade the pricing provisions of paragraphs 5, 6, and 7, and increase the effective syrup price to the bottlers, by reducing the amount of sugar to less than 5.32 pounds or by using cheaper substitutes. Defendant argues that so long as the strength of the syrup is maintained, (i.e., the cheaper sweetener is not an inferior sweetener), bottlers are not cheated of their bargain if the Company uses a cheaper sweetener. Defendant cites correspondence from J.B. Sizer, attorney for the actual bottlers, suggesting that the profits of the Company and the parent bottlers were “entirely immaterial” if the bottlers paid a price for syrup “that is not in excess, or greatly in excess, of the prices at which other soft drinks are sold.” PX 581. See also PX 587; PX 601. The short answer to defendant’s argument, and the fact to which the Court must return, is that the 1921 Consent Decrees were premised on the use of granulated cane sugar as a sweetener. In light of the experience of the parties prior to the entry of the Decrees, as well as the strong bargaining position enjoyed by the bottlers after the decision of this Court and argument before the Court of Appeals, the Court finds it unlikely they would enter into an agreement that allowed the Company to exploit a cheaper sugar in the manufacture of Coca-Cola Bottlers Syrup but keep the price of that syrup tied to the price of granulated sugar. Now that a fully acceptable substitute has been developed, and is being used in competing brands, it is in the interest of both the Company and the bottlers to use that substitute in place of sugar. The effect of paragraph 10’s sugar requirement is to require the Company to secure the consent of the bottlers before that change is made. It is the task of the parties, not of this Court, to refashion the agreement to reflect new developments. See Coca-Cola, 269 Fed. at 805. E. Post-1921 Course of Performance and Usage The course of performance and usage of the parties since the entry of the Consent Decrees in 1921 are consistent with the conclusion that “sugar” was not meant to include HFCS-55. 1. Course of Performance Both plaintiffs and defendant cite examples of actions since the entry of the Consent Decrees. The Court concludes the course of performance between the parties has broadened the meaning of the term “sugar” in paragraph 10, but that meaning still does not encompass HFCS. a. Use of Beet Sugar After quality problems with beet sugar were solved in 1941, the Company began to use beet sugar in Bottlers Syrup. DX 641; Tr. 735-36 (Mount). The Company subsequently purchased roughly one-third of its sugar requirements from beet processors, a percentage based on the beet industry’s share of the total United States sugar quota. Tr. 2819-20 (Konzal); DX 421. The price differential between cane and beet sugar was eliminated in 1967. Tr. 2796 (Konzal). Bottlers have known about the Company’s use of beet sugar for many years. Tr. 3210-11 (Schmidt) (since sometime after 1955, in 1960s or early 1970s); Tr. 3332-33 (Denny) (25 years). Because the use of beet sugar was not contemplated by the Consent Decrees, plaintiffs had the right to object to its use. Their failure to do so has resulted in a waiver of that right. The beet-sugar waiver has not, however, thrown open the door to the use of any sweetener. Waiver is based upon intent, and that intent must clearly appear from the evidence. George v. Frank A. Robino, Inc., 334 A.2d 223, 224 (Del.1975). See also Billman v. V.I. Equities Corp., 743 F.2d 1021 (3d Cir.1984). In this case, there is no evidence the plaintiff-bottlers waived the right to object to the use of HFCS in place of sugar. In effect, the term “sugar” in the Consent Decrees now means granulated sugar from cane or beet. That definition still excludes HFCS. b. Use of Liquid Sucrose Defendant asserts the Company’s unchallenged use of “liquid sucrose” since the 1950s also demonstrates the term “sugar” in paragraph 10 should be broadly defined. The Court disagrees. “Liquid sucrose” refers to a sucrose obtained by dissolving granulated sugar in water. Tr. 409 (Sequeira). It is immaterial for purposes of the Consent Decrees whether granulated sugar is in granular form or is dissolved in water. Liquid sucrose produced from granulated beet sugar, see Tr. 1812 (Cunningham), should be treated like dry granulated beet sugar under the Consent Decrees. Plaintiffs have waived an objection to beet sugar. See supra p. 1403. Liquid sucrose produced from cane sugar, on the other hand, must be regarded as dry granulated cane sugar and therefore satisfies the definition of “sugar” in paragraph 10. In sum, the Company’s use of liquid sucrose does not affect the meaning of “sugar” in paragraph 10. c. Tolling “Tolling” is a practice in which the Company buys raw sugar and then hires a refiner to refine it. Tr. 2807 (Konzal). The Company uses this contractual arrangement with regard to most of its cane sugar. Id. Defendant questions why tolling may be used to enhance the Company’s profits but HFCS may not be used as a sweetener to achieve the same goal. Dkt. 365, at 6 n. 17. The plain answer lies in the terms of the Consent Decrees, which specify the “sugar” to be used in the syrup but say nothing with regard to the mechanics of purchasing that sugar. The parties clearly contemplated that the Company’s actual costs could increase or decrease over the life of the Consent Decrees and that the Company’s profits would vary with its acumen in the sugar market. They consciously chose to tie the cost of syrup to the average cost of sugar irrespective of how the Company purchased it. The practice of “tolling” is simply not relevant to paragraph 10. 2. Usage The parties’ usage of the term “sugar” since 1921 is consistent with the Court’s finding that that term does not include HFCS-55. a. In General Notwithstanding its chemical definition, “sugar” continues to mean sucrose in the trade. Tr. 1768 (Shallenberger). Donald A. Leslie, who was employed by the Company from 1933 to 1971, purchased sugar in the Purchasing Department from 1946 to 1969, and became Director of Purchasing and Company Vice-President, testified that “sugar” standing alone meant refined sugar from cane or beets and that the term “sugar” was never used within the Company during his tenure to refer to corn sweeteners, which were called “sweeteners.” Tr. 810-11 (I Leslie Dep. 23). John M. Mount, who worked in the Purchasing Department from 1946 to 1981 and was Vice-President and Director of Purchasing from 1969 to 1981, testified that while the term “sucrose” was used when talking to “the technical people,” “[t]he terminology in the trade was that if you spoke of refined sugar, it was refined sugar produced from cane or beets.” Tr. 746 (I Mount Dep. 70). Stanley J. Konzal, who has worked in the Purchasing Department’s Sweetener Section since joining the Company in the early 1960s and is now Assistant Director of Purchasing, acknowledged that “[a]s a matter of business dealings, from day-today, we are not going to be dealing with the terminology strictly in the technical terms” and that the trade “as a matter of convenience” used “HFCS” to mean HFCS and “sugar” to mean sugar from cane or beet. Tr. 2898-2901. These working definitions were employed in Annual Reports of the Purchasing Department, which distinguished, and compared the prices of, “sugar” and “HFCS.” PX 857 (1974); PX 864 (1975); PX 870 (1978); PX 887 (1979); PX 889 (1980). A March 1979 report by the Company’s Corporate Technical Division, “Sweetener Policy for Coca-Cola,” also used this terminology, recommending that bottlers be authorized to use “only sucrose (sugar), either granulated or liquid” and reporting favorable taste test results “from the substitution of second-generation high fructose corn syrup (HFCS-55) for sugar in CocaCola____” PX 891, at 1. Numerous other internal Company memoranda likewise use “sugar” to refer to sucrose and “HFCS” to refer to HFCS. See, e.g., PX 929 (sugar/HFCS usage and cost); PX 949 (same); PX 951 (same); PX 930 (price forecasts); PX 916 (“Report on Sugar Procurement — 1980”); PX 898 (“Use of Sugar vs. HFCS”); PX 926 (“Sugar Purchase Program 1980-81”). Syrup price notices sent to bottlers also used the term “sugar” to refer to refined sucrose. See Tr. 1330-33 (I Blanchard Dep. 83-86) (understanding of Company Vice-President. and Manager of Contractual Dep’t); Tr. 1965-66 (Delauter) (understanding of bottler). But see DX 577 (June 8, 1979 memorandum from Roberto C. Goizueta to John Ogden, both senior officers, referring to “beet sugar,” “cane sugar,” and “this new sugar from corn” (HFCS)). Defendant has cited no internal Company document or discussion prior to 1980 stating that the term “sugar” in paragraph 10 refers to anything but sucrose. See also Tr. 225 (I Blanchard Dep. 281) (“I am unaware of any such conversation.”); Tr. 226-27 (I Susong Dep. 59, 62, 66). Defendant admits it had never prior to January 1, 1980 communicated to any parent bottler, actual bottler, or third party that the term “sugar” in paragraph 10 of the Consent Decrees or any first-line bottlers contract: is a generic term describing a wide variety of carbohydrates (as alleged in par. 31 of its Answer in this case); means any product other than sucrose; or includes any sweetener from corn. PX 981, 982 (Defendant’s Confidential Responses to Plaintiffs’ Second Interrogatories to Defendant, Nos. 8 & 9) (“The company is not presently aware of any such communication”). b. Labelling Unlike the usage outlined in the previous section, the Company’s usage in ingredient labelling is not probative. Upon the introduction of HFCS in allied lines in 1974, the Company decided to label it “corn sweetener.” PX 862; see also PX 878. . Plaintiffs contend this constitutes an admission by the Company that HFCS is not “sugar.” At best, however, the labelling decision evinces the Company’s recognition that the Food and Drug Administration does not regard HFCS as “sugar” for labelling purposes. The tenuous link between government labelling requirements and the scope of the term “sugar” in paragraph 10 of the Consent Decrees has already been noted. See supra note 10. The Company’s 1980 decision to label HFCS “sugar” when introduced in Coca-Cola, PX 903, at 2, and its subsequent decision in 1985, four years after the commencement of this lawsuit, to change the label to read “sucrose and/or high fructose corn syrup,” is likewise unpersuasive, c. 1978 Amendment The Company’s interpretation of and conduct under the 1978 Amendment to the first-line bottler’s contract are persuasive evidence that the parties’ understanding of the term “sugar” does not include HFCS55. The 1978 Amendment recites that it reflects a finding by the Company and the bottlers that it is “in their mutual best economic interest” to amend their previous contracts. PX 880. Under the Amendment, the syrup price is the sum of two components: the “Sugar Element” and the “Base Element.” The Amendment specifies: In the event that the formula for Bottle Syrup is modified to replace sugar, in whole or in part, with another sweetening ingredient, the Company will modify the method for computing the Sugar Element in such a way as to give the Bottler the savings realized as a result of such modification through an appropriate objective quarterly measure of the market price of any such sweetening ingredient. The Sugar Element would continue to fluctuate in the manner described above for sugar. Id. 111(c). The Court finds the parties intended the term “sugar” in the 1978 Amendment to mean the sugar then used in Coca-Cola Bottlers Syrup: sucrose from cane or beet. See Tr. 2216, 2226, 2229 (Blanchard); Tr. 1965-67 (Delauter); see also PX 880 111(b) (cane and beet sugar prices used to determine “Sugar Element”); PX 875, 883 (explanatory material) (bottlers to receive savings from any use of “non-sucrose sweetener”). In 1980, the Company began to use HFCS-55 in the manufacture of Coca-Cola Bottlers Syrup. PX 909. The Company passed through to the amending bottlers the savings realized through use of the substitute. PX 905; PX 906. By utilizing the pass-through provision of paragraph 1(c), the Company has conceded HFCS is not “sugar” but “another sweetening ingredient” for purposes of the Amendment. This contemporary understanding of the term “sugar” is consistent with and therefore supports the Court’s conclusion that HFCS is not “sugar” for purposes of the 1921 Consent Decrees. F. Conclusion: “Sugar” in Paragraph 10 I conclude the parties to the settlement agreements that became the Consent Decrees intended the term “sugar” in paragraph 10 to mean refined granulated sucrose from cane. The use of sugar from beets violated the Consent Decrees, but the bottlers waived objection to that violation. Thus, the effective present meaning of the term “sugar” in paragraph 10 is refined granulated sucrose from cane or beet, a definition that excludes HFCS-55. IV. The Meaning of “Market Price” in Paragraph 7 Paragraph 6 of the 1921 Consent Decrees fixes the price of a gallon of Coca-Cola Bottlers Syrup at $1.30. The price is to increase by an additional six cents per gallon for every increase of one cent per pound in sugar above seven cents per pound, with the same proportions to apply for a fractional increase. The formula for determining the price of sugar is set forth in paragraph 7, which reads: the price of sugar is to be determined quarterly, January, April, July and October in each year, by averaging the market price of standard granulated sugar during the first week in such quarter, as quoted at the refineries by the ten refineries operating in the United States of America at the time, having the largest capacity and output. PX 4; PX 5. It is plaintiffs’ position that the parties to the 1921 Consent Decrees intended the term “market price” as used in paragraph 7 to be an average of the actual selling price of the basis grade of refined sugar being charged f.o.b. the refineries by the 10 largest sugar refineries in the United States on sugar sold in wholesale lots for prompt shipment to industrial users during the first seven days of each calendar quarter, after the deduction of any rebates, discounts, or allowances from the list price that were known to The Coca-Cola company (other than the standard 2% discount for cash or payment within seven days). Dkt. 364 II34. Plaintiffs argue this intent is shown by examining: (1) the objective of the parties in drawing up the Consent Decrees; (2) the “ordinary meaning” of the term “market price”; (3) the parties’ contemporaneous usage of “market price”; and (4) the course of performance in computing the market price under the contract. Plaintiffs contend that to determine the market price, the Company has an obligation, every quarter, to seek information on actual selling prices directly from the refiners, from the Company’s own broker, from the bottlers, and from its own negotiating experience in the relevant time period. Dkt. 370, at 94-95, 97 (Transcript of Oral Argument, July 23, 1986). According to defendant, “market price” means the “ ‘quoted’ or ‘list’ prices publicly announced by the refiners to the trade at large, without taking into account any rebates, discounts, or allowances which might be negotiated by the Coca-Cola Company or any other purchaser in a specific transaction.” Dkt. 362 ¶ 81. Defendant argues the bitter pre-se