EXHIBIT 5.1
(BAKER BOTTS L.L.P. LETTERHEAD)
September 19, 2003
Heritage Propane Partners, L.P.
Heritage Operating, L.P.
Heritage Service Corp.
Heritage-Bi State, L.L.C.
Heritage Energy Resources, L.L.C.
8801 South Yale Avenue, Suite 310
Tulsa, Oklahoma 74137
Gentlemen:
We have acted as counsel for Heritage Propane Partners, L.P.,
a Delaware limited partnership (the "Partnership"), Heritage Operating, L.P., a
Delaware limited partnership (the "Operating Partnership"), Heritage Service
Corp., a Delaware corporation ("Heritage Service"), Heritage-Bi State, L.LC., a
Delaware limited liability company ("Heritage-Bi State"), and Heritage Energy
Resources, L.L.C., an Oklahoma limited liability company ("Heritage Energy" and,
together with Heritage Service and Heritage-Bi State, the "Subsidiary
Guarantors"), with respect to certain legal matters in connection with the
filing with the Securities and Exchange Commission (the "Commission") of a
registration statement (the "Registration Statement") under the Securities Act
of 1933, as amended (the "Securities Act"), registering (i) securities to be
issued and sold by the Partnership, the Operating Partnership and the Subsidiary
Guarantors from time to time pursuant to Rule 415 under the Securities Act for
an aggregate initial offering price not to exceed $800,000,000 and (ii) the
offer and sale by certain unitholders of the Partnership of up to 6,415,762
common units representing limited partner interests in the Partnership. Such
securities include (i) common units representing limited partner interests in
the Partnership (the "Common Units"); (ii) unsecured debt securities of the
Partnership, in one or more series, consisting of notes, debentures or other
evidences of indebtedness (the "Partnership Debt Securities"); (iii) unsecured
debt securities of the Operating Partnership, in one or more series, consisting
of notes, debentures or other evidences of indebtedness (the "Operating
Partnership Debt Securities" and, together with the Partnership Debt Securities,
the "Debt Securities"); and (iv) guarantees (the "Guarantees") of such Debt
Securities by one or more of the Partnership, the Operating Partnership and the
Subsidiary Guarantors. The Common Units, the Debt Securities and the Guarantees
are collectively referred to herein as the "Securities."
In our capacity as your counsel in the connection referred to
above, we have examined (i) the Amended and Restated Agreement of Limited
Partnership of the Partnership and the Certificate of Limited Partnership of the
Partnership, each as amended to date, (ii) the Amended and Restated Agreement of
Limited Partnership of the Operating Partnership and the Certificate of Limited
Partnership of the Operating Partnership, each as amended to date, (iii) the
Amended and Restated Agreement of Limited Partnership of U.S. Propane, L.P., a
Delaware limited partnership and the general partner of the Partnership and the
Operating Partnership (the "General Partner"), and the Certificate of Limited
Partnership of the General Partner, each as
Heritage Propane Partners,
L.P., et al. 2 September 19, 2003
amended to date, (iv) the Amended and Restated Limited Liability Company
Agreement of U.S. Propane, L.L.C., a Delaware limited liability company and the
general partner of the General Partner, and the Certificate of Formation of U.S.
Propane, L.L.C., each as amended to date, (v) the Certificate of Incorporation
of Heritage Service and the Bylaws of Heritage Service, each as amended to date,
(vi) the Amended and Restated Agreement of Limited Liability Company of
Heritage-Bi State and the Certificate of Formation of Heritage-Bi State, each as
amended to date, (vii) the forms of each of the Partnership's and the Operating
Partnership's senior and subordinated indentures filed as exhibits to the
Registration Statement (collectively, the "Indentures"), (viii) partnership,
corporate and limited liability company records of the Partnership, the
Operating Partnership, the General Partner, U.S. Propane, L.L.C., Heritage
Service and Heritage-Bi State, including minute books of the General Partner and
U.S. Propane, L.L.C. as furnished to us by the General Partner and U.S. Propane,
L.L.C., and (ix) the originals, or copies certified or otherwise identified, of
certificates of public officials and of representatives of the Partnership, the
Operating Partnership, the General Partner, U.S. Propane, L.L.C., Heritage
Service and Heritage-Bi State, statutes and other instruments and documents as a
basis for the opinions hereafter expressed.
In connection with this opinion, we have assumed that (i) a
definitive purchase, underwriting or similar agreement with respect to any
Securities offered will have been duly authorized and validly executed and
delivered by the Partnership, the Operating Partnership, the Subsidiary
Guarantors and the other parties thereto; (ii) any securities issuable upon
conversion, redemption, exchange or exercise of any Securities being offered
will be duly authorized, created and, if appropriate, reserved for issuance upon
such conversion, redemption, exchange or exercise; (iii) the certificates for
the Common Units will conform to the specimens thereof examined by us and will
have been duly countersigned by a transfer agent and duly registered by a
registrar of the Common Units; and (iv) each document submitted to us for review
is accurate and complete, each such document that is an original is authentic,
each such document that is a copy conforms to an authentic original and all
signatures on each such document are genuine.
Based upon and subject to the foregoing, we are of the opinion
that:
1. With respect to Common Units, when (a) the Partnership has
taken all necessary action to approve the issuance of such Common
Units, the terms of the offering thereof and related matters and (b)
such Common Units have been issued and delivered in accordance with the
terms of the applicable definitive purchase, underwriting or similar
agreement approved by the Partnership upon payment of the consideration
therefor provided for therein, such Common Units will be duly
authorized and validly issued and will be fully paid and nonassessable.
2. With respect to the Debt Securities and the Guarantees to
be issued under the applicable Indenture, when (a) the applicable
Indenture has been duly authorized and validly executed and delivered
by the Partnership, the Operating Partnership, the Subsidiary
Guarantors and the trustee thereunder, (b) the applicable Indenture has
been duly qualified under the Trust Indenture Act of 1939, as amended,
(c) the Partnership, the Operating Partnership and the Subsidiary
Guarantors have taken all necessary action to approve the issuance and
terms of such Debt Securities and Guarantees, the terms of the
Heritage Propane Partners,
L.P., et al. 3 September 19, 2003
offering thereof and related matters and (d) such Debt Securities and
Guarantees have been duly executed, authenticated, issued and delivered
in accordance with the terms of the applicable Indenture and the
applicable definitive purchase, underwriting or similar agreement
approved by the Partnership, the Operating Partnership and the
Subsidiary Guarantors upon payment of the consideration therefor
provided for therein, such Debt Securities and Guarantees will be duly
authorized and legally issued and will constitute valid and legally
binding obligations of the Partnership, the Operating Partnership and
the Subsidiary Guarantors, enforceable against the Partnership, the
Operating Partnership and the Subsidiary Guarantors in accordance with
their terms, except as the enforceability thereof is subject to the
effect of (i) bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other similar laws relating to or affecting
creditors' rights generally, (ii) general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law) or (iii) any implied covenants of good
faith and fair dealing.
The opinions set forth above are limited in all respects to
matters of the laws of the State of New York, the Delaware Revised Uniform
Limited Partnership Act, the Delaware Limited Liability Company Act, the General
Corporation Law of the State of Delaware and applicable federal law. We hereby
consent to the filing of this opinion of counsel as Exhibit 5.1 to the
Registration Statement. We also consent to the reference to our Firm under the
heading "Legal Matters" in the prospectus forming a part of the Registration
Statement. In giving this consent, we do not hereby admit that we are in the
category of persons whose consent is required under Section 7 of the Securities
Act or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ Baker Botts L.L.P.
JD/PFW