The complaint of the debtor in possession seeks a declaration of the ownership and lien rights of each of numerous defendants, including the defendants Calumet-Gussin No. 1 and The Riggs National Bank of Washington, D.C., in the debtor's 50% interest in the stallion CRIMINAL TYPE and in monies in the CRIMINAL TYPE Stallion Account.

This matter is before the court on the motion of the debtor in possession, Phoenix Corporation, formerly known as Calumet Farm, Inc., for summary judgment against the defendants Calumet-Gussin No. 1 and The Riggs National Bank of Washington, D.C. The debtor in possession contends that the defendant Calumet-Gussin No. 1 does not have an ownership interest in the 50% interest of Phoenix in the stallion CRIMINAL TYPE, in escrowed funds payable to Phoenix as its share of the proceeds of the sale of the stallion, or in the interest of Phoenix in monies in the CRIMINAL TYPE Stallion Account representing income realized from breeding services performed by the stallion during and prior to July 15, 1992.

The defendants Calumet-Gussin No. 1 and The Riggs National Bank filed a Joint Answer, Counterclaim and Cross-Claim.

In Count 1 of the counterclaim against the debtor in possession and cross-claim against co-defendants, Calumet-Gussin alleges that it owns a one-quarter interest in CRIMINAL TYPE and also owns $1.5 million in annual breeding nominations to stallions in the Calumet Farm stud group, which incudes CRIMINAL TYPE. It is further alleged that Calumet-Gussin's ownership interest in CRIMINAL TYPE and in breeding rights constitute property of Calumet-Gussin's estate in which Riggs has a perfected security interest which extends to any proceeds of sale of the stallion and to products and proceeds of the breeding rights.

In Count II of their counterclaim against the debtor in possession and cross-claim against co-defendants, Calumet-Gussin and Riggs allege that by virtue of the position of Calumet Farm, Inc. as a partner of the Calumet-Gussin partnership, Calumet Farm, Inc. owed a fiduciary duty to the partnership, and to Riggs as assignee of Calumet-Gussin's rights under the partnership agreement. They request an accounting and that the court impose a constructive trust in favor of Calumet-Gussin upon $1.5 million in annual breeding rights in and to stallions in the Calumet Farm stud group, specifically including breeding nominations in and to the stallion CRIMINAL TYPE, and to any and all cash and non-cash proceeds, products and progeny derived therefrom, specifically including Calumet Farm's portion of the proceeds of sale of CRIMINAL TYPE (and any interest earned thereon), and specifically including Calumet Farm's portion of the CRIMINAL TYPE Stallion Account (and interest earned thereon). They further ask the court to declare that Riggs is the only creditor holding a security interest in these assets of the debtor Calumet-Gussin No. 1.

There is no dispute as to Calumet-Gussin's ownership of a one-quarter interest in the stallion CRIMINAL TYPE or as to the validity of the security interest of Riggs in Calumet-Gussin's interest in the proceeds of sale of the stallion. What is in dispute is whether Calumet-Gussin holds a completed assignment of $1.5 million in annual breeding nominations to stallions in the Calumet Farm stud group and whether Riggs holds an enforceable security interest in those nominations and in the products and proceeds thereof.

Both Calumet Farm, Inc. and Calumet-Gussin No. 1 filed petitions for relief under chapter 11 of the Bankruptcy Code in this court on July 11, 1991, and as debtors in possession commenced orderly liquidation of the assets of the debtors. After the sale of Calumet Farm and the sale or relocation of the thoroughbred horses owned by the corporation, the debtor, Calumet Farm, Inc., changed its name to Phoenix Corporation, and is operating as debtor in possession under that name.

Phoenix Corporation commenced this adversary proceeding on June 26, 1992.

On July 14, 1992, both debtors in possession, Phoenix Corporation and Calumet-Gussin No. 1, filed a joint motion for an order authorizing sale of their respective 50% and 25% interests in the stallion CRIMINAL TYPE for $2,850,000 - $1,900,000 payable to Phoenix and $950,000 payable to Calumet-Gussin. After notice and a hearing the motion was sustained. An order authorizing the sale was entered July 30, 1992. Phoenix was directed to place the $1,900,000 received by it, after payment of its share of the expenses for upkeep of the stallion, in an interest bearing escrow account pending further orders of the court. The $950,000 payable to Calumet-Gussin, after deduction of the partnership's share of the expenses for upkeep of the stallion, was paid directly to The Riggs National Bank. The sale of the interests of the estates of the debtors in the stallion was free and clear of all claims, liens and encumbrances. Any claims, liens and encumbrances against Phoenix's interest in the stallion are attached to Phoenix's share of the proceeds of the sale.

The order of sale provides that the rights of Phoenix or Calumet-Gussin to any stud fee income, foal-sharings, mare sharings, stallion account deposits, and Breeders Cup amounts or other income payable after the date of the order from breedings during or prior to July 15, 1992, are excluded from the sale and shall remain property of the estates of the debtors, subject to all existing alleged claims.

The facts on which Calumet-Gussin bases its claim to $1.5 million in annual breeding nominations to stallions in the Calumet Farm stud group and on which Riggs bases its claim to a security interest therein are as follows.

On June 20, 1987, Calumet Farm, Inc., Renwar Corporation, a subsidiary of Calumet Farm, Inc., and Frederic and Paul Gussin formed a Kentucky limited partnership known as Calumet-Gussin No. 1. The partnership was formed in conjunction with an anticipated loan transaction with The Riggs National Bank of Washington, D.C.

On August 20, 1987, The Riggs National Bank of Washington, D.C. entered into a Revolving Credit and Term Loan Agreement with Calumet-Gussin No. 1 whereby the bank agreed to grant to the partnership a revolving line of credit in the maximum amount of $3,000,000 and a term loan in the amount of $20,000,000. Renwar Corporation and the Gussins signed the agreement as general partners of the partnership and as guarantors. Calumet Farm, Inc. signed the agreement as limited partner and as guarantor.

The loans by the bank to the partnership are evidenced by a revolving credit note in the principal amount of $3,000,000 and a term note in the principal amount of $20,000,000. Although possibly executed on August 20, 1987, the notes were by agreement dated as of September 15, 1987.

To secure payment of the indebtedness evidenced by the revolving credit note and term loan note Calumet-Gussin No. 1 executed a security agreement conveying to The Riggs National Bank a security interest in horse collateral, horse related collateral, and equine collateral. The security agreement, like the Revolving Credit and Term Loan Agreement, is dated August 20, 1987. Prior to August 20, 1987 the partnership did not possess an interest in the collateral pledged to the bank.

The purpose of the loan transaction between the partnership and the bank appears to have been to enable the partnership to acquire from Calumet Farm, Inc. the assets pledged to the bank. The partnership acquired its interest in the collateral pledged to the bank by a series of agreements between the partnership and Calumet Farm, Inc., dated August 20, 1987, and an Agreement of Purchase and Bill of Sale dated September 15, 1987, which coincides with the date of the notes executed by the partnership to the bank.

The agreements executed by the partnership and Calumet Farm, Inc. on August 20, 1987 were:

Also, on August 20, 1987 Calumet Farm, Inc. executed a Calumet Partnership Guarantee in favor of the partnership unconditionally guaranteeing payment of the debts of the partnership to The Riggs National Bank. The agreement recites that the partnership intends to assign all of its right, title and interest under the Guarantee to the bank as collateral pursuant to the security agreement of the same date. Further, on August 20, 1987, to induce The Riggs National Bank to make loans or otherwise extend credit to Calumet-Gussin No. 1 pursuant to the Revolving Credit and Term Loan Agreement, Calumet Farm, Inc. executed a Hypothecation Agreement granting to the bank a security interest in collateral described as the mare SUGAR AND SPICE, in foal to SEATTLE SLEW, the Criminal Type Maintenance and Training Agreement, the Sugar and Spice Lease Agreement, and all proceeds and products of any and all of the foregoing.

The Alydar Seasons Agreement provides as follows:

The Alydar Seasons Agreement also provides that in the event of default of Calumet-Gussin under the financing agreement with Riggs, the breeding service may be transferred or sold by Riggs subject to both a right of first refusal in favor of Calumet Farm and the right of Calumet Farm to sell the seasons on the same terms as any offer received by Riggs. Alydar Seasons Agreement, ¶7, at 4-5.

The Secreto Seasons Agreement is virtually identical to the Alydar Seasons Agreement except as to paragraph 3 wherein Calumet-Gussin ("Mare Owner") agrees to breed any four (4) of its mares on an annual basis to the stallion SECRETO in each breeding season of the stallion during the term of the agreement.

A document referred to in the Alydar and Secreto Seasons Agreements as "Schedule A" contains a list of the thoroughbred mares of Calumet-Gussin. On the list are eight broodmares identified by name.

Pursuant to the Sugar and Spice Lease Agreement Calumet Farm leased to Calumet-Gussin the breeding qualities of the thoroughbred mare SUGAR AND SPICE until the indebtedness of the partnership to The Riggs National Bank is paid in full. Any foal resulting from breeding the mare during the term of the lease is to be the absolute property of the partnership.

The eight broodmares of the partnership and the mare under lease resulted in the partnership having nine mares to breed to Calumet stallions. This number coincides with the number of seasons assigned to the partnership by Calumet Farm pursuant to the Alydar and Secreto Seasons Agreements.

The Alydar Foal Sharing Agreement and the Secreto Foal Sharing Agreement between Calumet Farm and Calumet-Gussin obligate Calumet Farm to annually transfer and assign to the partnership free and clear of liens and encumbrances and adverse claims all of Calumet Farm's right, title and interest in one live foal of each of the stallions produced as a result of a foal sharing agreement between Calumet and a mare owner. Under the agreements the partnership is to receive one-half of the net sale proceeds when the foal is sold by the mare owner.

Pursuant to the Maintenance and Training Agreement between Calumet-Gussin (owner) and Calumet Farm (manager) the partnership obligated itself to pay Calumet Farm the current daily board rate for boarding the horses of the partnership and all other expenses incurred in the care and maintenance of each horse, including ordinary veterinary, blacksmith, transportation and advertising expenses. The agreement also obligates the partnership to reimburse Calumet Farm for maintenance and training and other expenses of horses in training.

The Criminal Type Maintenance and Training Agreement obligates the partnership to pay Calumet Farm one-fourth of the daily board rate and other expenses incurred in the care and maintenance of the thoroughbred CRIMINAL TYPE. This horse was then in training or racing in France and later became one of the stallions standing at Calumet Farm.

On September 15, 1987, Calumet Farm and Calumet-Gussin executed an Agreement of Purchase and Bill of Sale whereby in consideration of a purchase price of $20,000,000, receipt of which was acknowledged, Calumet Farm sold and transferred to Calumet-Gussin thoroughbred horses and rights identified on Exhibit A to the agreement. Twenty-two thoroughbred horses are identified on Exhibit A, including the eight broodmares identified on Annex A to the Alydar and Secreto Seasons Agreements and the mare SUGAR AND SPICE. The sale agreement makes clear that it is only the right to receive ownership of the progeny of SUGAR AND SPICE and not the ownership of the mare that is being conveyed. Other horses conveyed were nine 1987 foals of the broodmares, and three horses engaged in racing, plus a one-fourth interest in the colt CRIMINAL TYPE, then racing in France.

The controversy before the court centers on the provisions of paragraphs 1 and 3 of the Agreement of Purchase and Bill of Sale and Item 25 on Exhibit "A" to the agreement, identifying annual breeding nominations (seasons) to Calumet stallions committed by Calumet Farm to Calumet-Gussin pursuant to the terms of the agreement. The language of paragraph 1 is qualified by the language of paragraph 3 and Item 25 on Exhibit "A" with respect to the finality of the transfer of seasons to Calumet stallions accomplished by the agreement.

Paragraph 1 of the Agreement of Purchase and Bill of Sale provides:

Paragraph 3 of the Agreement of Purchase and Bill of Sale provides:

1987

1988

1989

1990/1991 1992

ALYDAR

$300,000

$240,000

$180,000

$120,000

SECRETO

100,000

80,000

60,000

40,000

WILD AGAIN

40,000

32,000

24,000

16,000

HIGHLAND BLADE

25,000

20,000

15,000

10,000

SAGACE

50,000

40,000

30,000

20,000

SEATTLE SLEW

300,000

240,000

180,000

120,000

Item 25 on Exhibit "A" to the Agreement of Purchase and Bill of Sale provides:

The security agreement dated August 20, 1987 executed by Calumet-Gussin to The Riggs National Bank to secure payment of the indebtedness represented by the Revolving Credit loan and the Term loan, the proceeds of which were used by the partnership to acquire from Calumet Farm the assets described in the Agreement of Purchase and Bill of Sale dated September 15, 1987, grants to the bank a security interest in collateral, described in paragraph 1.01 of the security agreement, as follows:

Annex B to the security agreement describes "horse related collateral" as follows:

It should be noted that on August 20, 1987, the Grantor (Calumet-Gussin) owned no breeding seasons to thoroughbred stallions except such seasons as were on that day or thereafter conveyed to it by Calumet Farm, Inc. or others. It is only upon the acquisition of seasons by Calumet-Gussin that the security interest of Riggs would attach to such seasons.

Riggs perfected its security interest in the collateral proffered by Calumet-Gussin by filing financing statements in the offices of the County Clerk of Fayette County, Kentucky; the Secretary of State of the Commonwealth of Kentucky; the Department of State, New York; the Clerk of the County of Nassau County, New York; the Secretary of State, New Jersey; the Clerk of Bergen County, New Jersey; the Secretary of State, Illinois; and the Recorder of Cook County, Illinois, on September 2-4, 1987. Each financing statement incorporates by reference "Schedule A" thereto, which mirrors the description and adopts the definitions of "horse collateral" and "horse related collateral" as set forth above.

At the time of the agreement of the Agreement of Purchase and Bill of Sale dated September 15, 1987 between Calumet Farm, Inc. and Calumet-Gussin No. 1, Calumet Farm, Inc. owned 100% of CRIMINAL TYPE who was then a two year old colt racing in France. The colt continued to race in France during 1988 and in the United States during 1989 and 1990. CRIMINAL TYPE was named Horse of the Year and Champion Older Horse in 1990. CRIMINAL TYPE was injured in the Woodward Handicap race at Belmont Park on September 15, 1990, and was thereafter retired from racing and was added to the stallions standing at stud at Calumet Farm. This was prior to the 1991 breeding season, the only season the stallion was available for breeding prior to the intervention of these chapter 11 proceedings on July 11, 1991. Calumet-Gussin and Riggs contend that when CRIMINAL TYPE was "added to the Calumet Farm stud group," Calumet-Gussin acquired annual nominations to the stallion under the terms of Item 25 on Exhibit "A" to the September 15, 1987 Agreement of Purchase and Bill of Sale, and that upon acquisition of such nominations by Calumet-Gussin the security interest of Riggs attached to Calumet-Gussin's interest in the nominations. Obviously, CRIMINAL TYPE is not specifically denominated in Item 25 of Exhibit "A" to the Agreement of Purchase and Bill of Sale of September 15, 1987, as one of the stallions in the Calumet Farm stud group.

As previously noted, the Calumet-Gussin No. 1 partnership filed a petition for relief under chapter 11 of the Bankruptcy Code in this court on July 11, 1991, concurrently with the chapter 11 petition of Calumet Farm, Inc. The broodmares owned by Calumet-Gussin were sold, and the proceeds of sale have been disbursed to The Riggs National Bank. The partnership no longer owns any mares which can be bred to stallions in the Calumet Farm stud group. The stallion ALYDAR died prior to the commencement of these bankruptcy proceedings. The court has previously ruled the bankruptcy of Calumet-Gussin is an event of default which entitled Riggs to sell the seasons to SECRETO in which the bank had a security interest.

At issue is the extent to which the Agreement of Purchase and Bill of Sale of September 15, 1987 operated as an assignment by Calumet Farm, Inc. to the Calumet-Gussin No. 1 partnership of breeding nominations (seasons) to CRIMINAL TYPE when he was retired from racing in 1990 and thereafter commenced standing at stud at Calumet Farm during the 1991 breeding season. Obviously, there was no assignment of breeding rights to this stallion until he joined the Calumet Farm stud group.

Calumet-Gussin and Riggs argue that the conveyance from Calumet Farm to Calumet-Gussin on September 15, 1987, of breeding rights to stallions in the Calumet Farm stud group exercisable by Calumet-Gussin in the years 1987, 1988, 1989, 1990, 1991, and 1992, and thereafter until the indebtedness to Riggs is satisfied, divested Calumet Farm of any interest in those seasons; that these seasons are property of Calumet-Gussin's bankruptcy estate in which Riggs and only Riggs has a security interest.

If, as contended by Riggs, the September 15, 1987 Agreement of Purchase and Bill of Sale operated as a completed assignment to the partnership of seasons in Calumet stallions to which the security interest of Riggs in property of the partnership then attached, the security interest of Riggs in seasons to Calumet stallions would thereby preempt subsequent consensual, statutory or judicial liens in seasons to the stallions or in rights to breed mares to or to participate in income from breeding mares to the stallions.

The language of paragraph 1 of the Agreement of Purchase and Bill of Sale dated September 15, 1987 provides that the "Seller [Calumet Farm, Inc.] hereby bargains, sells and transfers all of the right, title, and interest, and Buyer [Calumet-Gussin No. 1] hereby purchases from Seller the thoroughbred horses and rights identified on Exhibit "A" attached hereto and made a part hereof (the "Horses")" (underscoring added).

The "rights" so transferred include at least breeding nominations (seasons) to thoroughbred stallions ALYDAR and SECRETO identified in Item 25 on Exhibit "A" to the agreement.

The seemingly unequivocal transfer of other breeding nominations pursuant to paragraph 1 of the Agreement of Purchase and Bill of Sale is qualified by the language of both paragraph 3 of the agreement and Item 25 on Exhibit "A" to the agreement.

Paragraph 3 states: "Seller shall provide seasons to the thoroughbred stallions identified in Item 25 on Exhibit "A" in 1987, 1988, 1989, 1990, 1991 and 1992" (underscoring added).

It should be noted that all the broodmares listed on Exhibit "A" are shown as in foal and further that the 1987 thoroughbred breeding season had concluded before the Agreement of Purchase and Bill of Sale between Calumet and Calumet-Gussin was executed. Consequently, it is obvious there was no transfer of seasons in Calumet stallions to Calumet-Gussin for the initial year of the agreement. The year 1987 apparently was included as a year of reference for determining the value of seasons.

It should also be noted that neither the language of paragraph 1 nor of paragraph 3 of the Agreement of Purchase and Bill of Sale conveys to the Buyer, Calumet-Gussin, any specific number of seasons in any specific stallion or stallions for the years enumerated. Both paragraphs rely on Item 25 on Exhibit "A" to provide specificity as to the seasons conveyed. Unfortunately, Item 25 on Exhibit "A" does not provide any such specificity, except with respect to seasons to the stallions ALYDAR and SECRETO.

Item 25 provides, in effect, that until the indebtedness of Calumet-Gussin to Riggs is paid in full, Calumet Farm, Inc. shall provide to Calumet-Gussin "annual breeding nominations (seasons) to the thoroughbred stallions HIGHLAND BLADE, SECRETO, WILD AGAIN, SAGACE, ALYDAR, and any other stallions added to the Calumet stud group, or nominations otherwise provided by Calumet which are acceptable to Calumet-Gussin No. 1, . . . and having an annual total live foal season value based on 1987 prices or comparables of not less than $1,500,000. . . ."

This language obligates Calumet Farm to provide annual seasons to stallions in the Calumet stud group or alternatively to other stallions acceptable to Calumet-Gussin, in all having an annual total live foal season value of not less than $1,500,000. Such language does not operate as an assignment to the partnership of any particular number of seasons to any particular stallion during any particular year. Obviously further action on the part of Calumet and the partnership was required for designation of seasons to be transferred to the partnership.

The lack of specificity of the foregoing language is illustrated by the more specific language of the second and final sentence of Item 25 and the interrelationship of the two sentences. The second sentence provides that notwithstanding the provisions of the preceding sentence, "unless the Partnership otherwise determines, [until the indebtedness to Riggs is paid in full], each year the Partnership shall have five (5) breeding nominations to ALYDAR, assuming he is then breeding sound, and four (4) breeding nominations to SECRETO, assuming he is then breeding sound, to use or otherwise deal in or with as the Partnership may determine."

Although this language purports to permit the partnership to deal in or with the ALYDAR and SECRETO seasons as it may determine, the ALYDAR and SECRETO seasons agreements provide that the Mare Owner (the Partnership) agrees to breed five of its mares to ALYDAR and four of its mares to SECRETO in each breeding season during the term of the agreements. Because the partnership had only nine mares to breed (eight owned and one leased), there were no mares available to breed to other stallions in the Calumet stud group until such time as the partnership acquired more mares. Accordingly, it may have been the intention of the parties that the partnership could traffic in extra seasons, that is, sell them to third parties, but in order for the partnership to do so, Calumet Farm would have had to deliver to the partnership assignments of the seasons in the form of breeding contracts. There is no evidence that any such assignments to other stallions were made.

The Agreement of Purchase and Bill of Sale obligated Calumet Farm to assign seasons to Calumet-Gussin but did not operate as an actual assignment of seasons to stallions in the Calumet stud group. This is born out by the fact the parties did not rely on the far more specific language of the last sentence of Item 25 on Exhibit "A" to the agreement to effectuate a transfer to the partnership of five annual seasons to ALYDAR and four annual seasons to SECRETO. They chose to solidify the transfer by execution of the separate ALYDAR and SECRETO seasons agreements.

It is not at all clear from the language of Item 25 on Exhibit "A" whether the five annual seasons to ALYDAR and four annual seasons to SECRETO which the partnership is to have under the second sentence of Item 25 are included in or are in addition to the $1,500,000 in annual seasons to be provided to the partnership pursuant to the first sentence of Item 25. Under either interpretation the partnership had access to seasons which it could not utilize other than by sale of seasons to third parties. The fact the partnership did not exercise control over such seasons or attempt to sell the seasons to third parties indicates an understanding that further action on the part of both parties was required for the partnership to acquire ownership of the seasons to the thoroughbred stallions identified in Item 25 on Exhibit "A" to the Agreement of Purchase and Bill of Sale.

To effect a legal assignment "there must be evidence of intent to assign or transfer the whole or part of a specific thing, debt, or chose in action, and the subject matter should be sufficiently described to make it capable of being identified." 6 Am. Jur. 2d "Assignments" §1 (1963; 1993 Supp.) (footnotes omitted).

In Kentucky a valid assignment is achieved not by use of any prescribed form or wording but by evidencing the parties' intentions to effect an assignment. Roberts v. Powers, 198 S.W.2d 58, 60 (Ky. 1946). However, "the intention of the parties . . . must be gathered from what they said 'and not by what they may have intended to say but did not.'" Id.

Here, there was an agreement to assign seasons, but there was no present effective assignment of or transfer of seasons to stallions in the Calumet stud group other than to the stallions ALYDAR and SECRETO. ALYDAR is deceased. In a separate opinion in adversary proceeding No. 92-5003 the court determined the rights of the parties with respect to the SECRETO seasons.

The court agrees with the statement in the joint memorandum of Calumet-Gussin and Riggs that the nature and extent of Calumet-Gussin's property rights in seasons to stallions in the Calumet Farm stud group must be determined by reference to applicable state law. The court disagrees with the assertion that the decision of the Kentucky Supreme Court in North Ridge Farms v. Trimble, 700 S.W.2d 396 (Ky. 1985) begins and ends the debate in this case. In that case there was an unequivocal assignment by the owner of a share in the stallion AFFIRMED of a future breeding season associated with the share. In this case there was no definite assignment of any particular number of future breeding seasons to CRIMINAL TYPE for any particular year. This is best illustrated by the fact that no knowledgeable third party would broker or purchase the future breeding rights claimed by Calumet-Gussin without first requiring Calumet-Gussin to obtain from Calumet Farm, Inc. a more definite assignment agreement comparable to the ALYDAR and SECRETO season agreements. The question of the effect of an assignment of future breeding seasons arises only when there has been an effective assignment of, rather than a mere agreement to assign, such seasons.

Moreover, even if the Agreement of Purchase and Bill of Sale of September 15, 1987 and Exhibit "A" thereto as incorporated by reference therein were viewed as operating as a present assignment of future seasons to stallions in the Calumet Farm stud group, including CRIMINAL TYPE, the mere ownership of breeding rights to such stallions does not confer on Calumet-Gussin an ownership interest in any stallion such as would entitle Calumet-Gussin to all or a portion of Phoenix's share of the proceeds of the sale of the stallion CRIMINAL TYPE. In a prior opinion in an adversary proceeding this court concluded that --

Phoenix Corporation v. Hill 'N Dale Farm of Gormley, Ontario, Canada, Adv. No. 92-5048, memorandum opinion at 13-14 (September 16, 1993).

The Agreement of Purchase and Bill of Sale and Exhibit "A" thereto as incorporated by reference therein do not restrict the right of Calumet Farm, Inc. to sell its interest in the named stallions nor in any stallions subsequently added to the Calumet Farm stud group. Nor do these documents provide that the sale of Calumet's interest in any of the stallions shall not defeat the breeding nominations for which Calumet-Gussin prepaid, as does for example paragraph 15 of the ALYDAR and SECRETO season agreements. This court has previously held that the inclusion of such a provision in an assignment of breeding rights does not elevate the assigned breeding rights to an ownership interest in the stallion. See In re Calumet Farm, Inc., Case No. 91-51414, memorandum opinion at 4-6 (May 28, 1993) (concerning the sale of the stallion JUDGE SMELLS). Thus, in no event does the security interest of Riggs extend to Phoenix's share of the proceeds of sale of CRIMINAL TYPE.

Further, because Calumet-Gussin does not hold an assignment of seasons to CRIMINAL TYPE, it follows that Calumet-Gussin does not have an ownership interest in and Riggs does not have a security interest in Phoenix's share of monies in the CRIMINAL TYPE stallion account. Phoenix's share of these monies does not represent proceeds of collateral in which Riggs has a security interest.

The parties have not briefed the issues raised by the joint request of Calumet-Gussin and Riggs for an accounting and the imposition of a constructive trust in their favor on Phoenix's share of the proceeds of sale of CRIMINAL TYPE and on monies in the CRIMINAL TYPE stallion account. In view of the conclusion of the court that Calumet-Gussin does not hold an assignment of seasons to CRIMINAL TYPE and for that reason never acquired ownership of the CRIMINAL TYPE seasons in which Riggs claims a security interest, there is no occasion to require an accounting or for the imposition of a constructive trust.

Accordingly, the motion of Phoenix Corporation for summary judgment on the joint counterclaim of Calumet-Gussin and The Riggs National Bank shall be sustained.

Dated:

By the court -

____________________________

JOE LEE, CHIEF JUDGE

Copies to:

Kimberly J. Davis

Daniel M. Litt

Paul Bennett Bran

Thomas W. Miller

Frank T. Becker

James W. Gardner

Philip L. Hanrahan

Russell A. Tolley

Joseph M. Scott

ORDER

In conformity with the memorandum opinion of the court this day entered, IT IS ORDERED that the motion of the plaintiff debtor in possession, Phoenix Corporation, formerly known as Calumet Farm, Inc., for summary judgment against the defendants Calumet-Gussin No. 1 and The Riggs National Bank of Washington, D.C., be and the same is hereby sustained. There being no just reason for delay, SUMMARY JUDGMENT is hereby entered for the plaintiff. This is a final and appealable order.

Dated:

By the court -

____________________________

JOE LEE, CHIEF JUDGE

Copies to:

Kimberly J. Davis

Daniel M. Litt

Paul Bennett Bran

Thomas W. Miller

Frank T. Becker

James W. Gardner

Philip L. Hanrahan

Russell A. Tolley

Joseph M. Scott