Exhibit 5-A
April 3, 2002
Duke Energy Corporation
526 South Church Street
Charlotte, North Carolina 28202
Dear Sirs:
I am acting as counsel to Duke Energy Corporation (the "Corporation")
in connection with the preparation of a Registration Statement on Form S-3 to be
filed today with the Securities and Exchange Commission under the Securities Act
of 1933, as amended, relating to the proposed issuance and sale of up to
$2,000,000,000 of the Corporation's Senior Notes ("Senior Notes"), Junior
Subordinated Notes ("Junior Subordinated Notes"), First and Refunding Mortgage
Bonds ("Bonds"), Common Stock without par value ("Common Stock"), contracts to
purchase shares of Common Stock ("Stock Purchase Contracts") and/or units, each
comprised of a Stock Purchase Contract and either Senior Notes, Junior
Subordinated Notes, other debt securities of the Corporation or one of its
subsidiaries, debt obligations of third parties (including U.S. Treasury
securities), Preferred Securities (as hereinafter defined) or preferred
securities issued by a trust of which a subsidiary of the Corporation owns all
the common securities, in each such case pledged to secure the holder's
obligations to purchase Common Stock under the Stock Purchase Contract ("Stock
Purchase Units"), and/or Preferred Securities (liquidation amount $ per
Preferred Security) ("Preferred Securities") of Duke Energy Capital Trust III,
Duke Energy Capital Trust IV and/or Duke Energy Capital Trust V, all as
contemplated in the above-mentioned Registration Statement. Such Registration
Statement also relates to the proposed issuance of the Corporation's Guarantees
(as defined in such Registration Statement), Junior Subordinated Notes with
respect to the Preferred Securities ("Trust Preferred Junior Subordinated
Notes") and Stock Purchase Contracts with respect to the Stock Purchase Units,
each as contemplated by such Registration Statement.
As Deputy General Counsel and Assistant Secretary of the Corporation, I
am familiar with the Articles of Incorporation and By-Laws of the Corporation,
both as amended to date, the form of supplemental indenture relating to the
Senior Notes (the "Senior Notes Supplemental Indenture") supplementing the
Senior Indenture dated as of September 1, 1998 from the Corporation to JPMorgan
Chase Bank, as Trustee, as heretofore supplemented (the "Senior Indenture"), the
form of supplemental indenture relating to the Junior Subordinated Notes (the
"Subordinated Notes Supplemental Indenture") supplementing the Subordinated
Indenture dated as of December 1, 1997 from the Corporation to JPMorgan Chase
Bank, as Trustee, as heretofore supplemented (the "Subordinated Indenture"), the
form of supplemental indenture relating to the Trust Preferred Junior
Subordinated Notes (the "Trust Preferred Subordinated Notes Supplemental
Indenture") supplementing the Subordinated Indenture, the form of supplemental
indenture relating to the
Bonds (the "Bonds Supplemental Indenture") supplementing the First and Refunding
Mortgage, dated as of December 1, 1927, from the Corporation to JPMorgan Chase
Bank, as successor Trustee, as heretofore supplemented and amended (the "First
and Refunding Mortgage"), and the form of Guarantee Agreement between the
Corporation and the trustee named therein (the "Guarantee Agreement") relating
to the Guarantees. I have also made such examination of corporate records and
proceedings and other documents and questions of law as I have considered
necessary for the purposes of this opinion.
Based upon the foregoing, I am of the opinion that:
(1) The Corporation has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of North Carolina.
(2) Upon (a) the above-mentioned Registration Statement under
the Securities Act of 1933, as amended, becoming effective; (b)
compliance with any applicable securities or blue sky laws; (c) the
Senior Indenture, as to be supplemented by the Senior Notes
Supplemental Indenture, having qualified under the Trust Indenture Act
of 1939, as amended; (d) the execution and delivery of the Senior Notes
Supplemental Indenture; (e) the execution, authentication and delivery
of the Senior Notes in accordance with resolutions to be adopted by the
Chief Executive Officer of the Corporation pursuant to authority
expressly granted to him by the Board of Directors of the Corporation
and in accordance with the provisions of the Senior Indenture as to be
supplemented by the Senior Notes Supplemental Indenture; and (f) the
issuance and sale of the Senior Notes in accordance with resolutions to
be adopted by the Chief Executive Officer of the Corporation pursuant
to authority expressly granted to him by the Board of Directors of the
Corporation and in accordance with appropriate orders of the North
Carolina Utilities Commission and The Public Service Commission of
South Carolina, the Senior Notes will be valid, binding and legal
obligations of the Corporation in accordance with their terms, except
as limited by bankruptcy, insolvency or other laws affecting the
enforcement of creditors' rights.
(3) Upon (a) the above-mentioned Registration Statement under
the Securities Act of 1933, as amended, becoming effective; (b)
compliance with any applicable securities or blue sky laws; (c) the
Subordinated Indenture, as to be supplemented by the Subordinated Notes
Supplemental Indenture, having qualified under the Trust Indenture Act
of 1939, as amended; (d) the execution and delivery of the Subordinated
Notes Supplemental Indenture; (e) the execution, authentication and
delivery of the Junior Subordinated Notes in accordance with
resolutions to be adopted by the Chief Executive Officer of the
Corporation pursuant to authority expressly granted to him by the Board
of Directors of the Corporation and in accordance with the provisions
of the Subordinated Indenture as to be supplemented by the Subordinated
Notes Supplemental Indenture; and (f) the issuance and sale of the
Junior Subordinated Notes in accordance with resolutions to be adopted
by the Chief Executive Officer of the Corporation pursuant to authority
expressly granted to him by the Board of Directors of the Corporation
and in accordance with appropriate orders of the North Carolina
Utilities Commission and The Public Service Commission of South
Carolina, the Junior Subordinated Notes will be valid,
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binding and legal obligations of the Corporation in accordance with
their terms, except as limited by bankruptcy, insolvency or other laws
affecting the enforcement of creditors' rights.
(4) Upon (a) the above-mentioned Registration Statement under
the Securities Act of 1933, as amended, becoming effective; (b)
compliance with any applicable securities or blue sky laws; (c) the
First and Refunding Mortgage, as to be supplemented by the Bonds
Supplemental Indenture, having qualified under the Trust Indenture Act
of 1939, as amended; (d) the execution and delivery of the Bonds
Supplemental Indenture; (e) the execution, authentication and delivery
of the Bonds in accordance with resolutions to be adopted by the Chief
Executive Officer of the Corporation pursuant to authority expressly
granted to him by the Board of Directors of the Corporation and in
accordance with the provisions of the First and Refunding Mortgage as
to be supplemented by the Bonds Supplemental Indenture; and (f) the
issuance and sale of the Bonds in accordance with resolutions to be
adopted by the Chief Executive Officer of the Corporation pursuant to
authority expressly granted to him by the Board of Directors of the
Corporation and in accordance with appropriate orders of the North
Carolina Utilities Commission and The Public Service Commission of
South Carolina, the Bonds will be valid, binding and legal obligations
of the Corporation in accordance with their terms, except as limited by
bankruptcy, insolvency or other laws affecting the enforcement of
mortgagees' and other creditors' rights.
(5) Upon (a) the above-mentioned Registration Statement under
the Securities Act of 1933, as amended, becoming effective; (b)
compliance with any applicable securities or blue sky laws; (c) the
issuance and sale of the Common Stock in accordance with resolutions to
be adopted by the Chief Executive Officer of the Corporation pursuant
to authority expressly granted to him by the Board of Directors of the
Corporation, in accordance with appropriate orders of the North
Carolina Utilities Commission and The Public Service Commission of
South Carolina, and, if issued pursuant to Stock Purchase Contracts or
Stock Purchase Units, in accordance with the terms thereof; and (d) the
receipt by the Corporation of the full purchase price thereof, the
Common Stock will be duly authorized, validly issued, fully paid and
nonassessable.
(6) Upon (a) the above-mentioned Registration Statement under
the Securities Act of 1933, as amended, becoming effective; (b)
compliance with any applicable securities or blue sky laws; (c) the
fixing and determination of the terms of the Stock Purchase Contracts
and/or the Stock Purchase Units in accordance with resolutions to be
adopted by the Chief Executive Officer of the Corporation pursuant to
authority expressly granted to him by the Board of Directors of the
Corporation; (d) the execution and delivery of the agreements relating
to the issuance of the Stock Purchase Contracts and/or the Stock
Purchase Units; (e) the execution and delivery of the Stock Purchase
Contracts and/or the Stock Purchase Units in accordance with
resolutions to be adopted by the Chief Executive Officer of the
Corporation pursuant to authority expressly granted to him by the Board
of Directors of the Corporation and in accordance with the
above-mentioned agreements; and (f) the issuance and sale of the Stock
Purchase Contracts and/or the Stock Purchase Units in accordance with
resolutions to be adopted by the
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Chief Executive Officer of the Corporation pursuant to authority
expressly granted to him by the Board of Directors of the Corporation
and in accordance with appropriate orders of the North Carolina
Utilities Commission and The Public Service Commission of South
Carolina, the Stock Purchase Contracts and/or the Stock Purchase Units
will be valid, binding and legal obligations of the Corporation in
accordance with their terms, except as limited by bankruptcy,
insolvency or other laws affecting the enforcement of creditors'
rights.
(7) Upon (a) the above-mentioned Registration Statement under
the Securities Act of 1933, as amended, becoming effective; (b)
compliance with any applicable securities or blue sky laws; (c) the
Subordinated Indenture, as to be supplemented by the Trust Preferred
Subordinated Notes Supplemental Indenture, and the Guarantee Agreements
having qualified under the Trust Indenture Act of 1939, as amended; (d)
the execution and delivery of the Trust Preferred Subordinated Notes
Supplemental Indenture and of the Guarantee Agreements; (e) the
execution, authentication and delivery of the Trust Preferred Junior
Subordinated Notes in accordance with the Trust Preferred Subordinated
Notes Supplemental Indenture and of the Guarantees in accordance with
the Guarantee Agreements; and (f) the issuance of the Trust Preferred
Junior Subordinated Notes and of the Guarantees, in each case in
accordance with resolutions to be adopted by the Chief Executive
Officer of the Corporation pursuant to authority expressly granted to
him by the Board of Directors of the Corporation and in accordance with
appropriate orders of the North Carolina Utilities Commission and The
Public Service Commission of South Carolina, the Trust Preferred Junior
Subordinated Notes and the Guarantees will be valid, binding and legal
obligations of the Corporation in accordance with their terms, except
as limited by bankruptcy, insolvency or other laws affecting the
enforcement of creditors' rights.
I am a member of the bar of the State of North Carolina and the
foregoing opinion is limited solely to the laws of that State.
I hereby consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the above-mentioned Registration Statement
and to the use of my name and the reference made to me under the captions
"Validity of the Securities" in such Registration Statement. Except as stated
above, without my prior written consent, this opinion may not be furnished or
quoted to, or relied upon by, any other person for any purpose.
Very truly yours,
/s/ Edward M. Marsh, Jr.
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Edward M. Marsh, Jr.
Deputy General Counsel and
Assistant Secretary
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