EXHIBIT 5.1
[VINSON & ELKINS L.L.P. LETTERHEAD]
January 9, 2004
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.L.C., 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." We have also acted as
counsel for the Partnership with respect to certain legal matters in connection
with the proposed offering by the Partnership of 7,000,000 common units
(8,050,000 common units if the over-allotment option granted to the underwriters
is exercised in full) of the Partnership representing limited partner interests
(the "Proposed Offering").
In our capacity as your counsel in the connection referred to above, as
a basis for the opinions hereafter expressed, 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
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partner of the Partnership and the Operating Partnership (the "General
Partner"), and the Certificate of Limited Partnership of the General Partner,
each as amended to date, (iv) the Amended and Restated Limited Liability Company
Agreement and the Certificate of Formation of U.S. Propane, L.L.C., a Delaware
limited liability company and the general partner of the General Partner, 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.,
furnished to us by the General Partner and U.S. Propane, L.L.C., (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, and (x) such statutes and other instruments and documents as
we deemed necessary or advisable for purposes of this opinion.
In connection with this opinion, we have assumed that (i) the
Registration Statement and any amendments thereto (including post-effective
amendments) will have become effective; (ii) a prospectus supplement will have
been prepared and filed with the Commission describing the Securities offered
thereby; (iii) 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; (iv) 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; (v) 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 (vi) 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 under the Registration Statement 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
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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 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 contract law 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/ Vinson & Elkins L.L.P.
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