Exhibit 5-A
August 29, 2003
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 Associate 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/ Robert T. Lucas III
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Robert T. Lucas III
Associate General Counsel and
Assistant Secretary
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