EXHIBIT 5.1
[LETTERHEAD OF DAVIS POLK & WARDWELL]
NOVEMBER 19, 1997
The AES Corporation
1001 North 19th Street
Arlington, Virginia 22209
Ladies and Gentlemen:
We have acted as counsel in connection with the Registration Statement
on Form S-3 (the "REGISTRATION STATEMENT") filed by the AES Corporation (the
"Company") with the Securities and Exchange Commission pursuant to the
Securities Act of 1933, as amended, for the registration of the sale by the
Company from time to time of up to $1,500,000,000 aggregate principal amount of
senior debt securities, senior subordinated debt securities, junior subordinated
debt securities and junior subordinated debt securities (the "JUNIOR
SUBORDINATED DEBT TRUST SECURITIES") issued directly or to a Trust referred to
below (collectively, the "DEBT SECURITIES") of the Company, common stock, par
value $0.01 per share, (the "COMMON STOCK") of the Company and preferred
securities (the "PREFERRED SECURITIES") of AES Trust III AES Trust IV and AES
Trust V, each a statutory business trust created under the Business Trust Act of
the State of Delaware (each, a "TRUST" and, collectively, the "TRUSTS") and
guarantees of the Preferred Securities by the Company (the "GUARANTEES") and
stock purchase contracts to purchase Common Stock (the "STOCK PURCHASE
CONTRACTS") and stock purchase units, each representing ownership of a Stock
Purchase Contract and Debt Securities or debt obligations of third parties (the
"STOCK PURCHASE UNITS"). The senior Debt Securities are to be issued pursuant to
an indenture (the "SENIOR DEBT INDENTURE") between the Company and the First
National Bank of Chicago, as trustee. The senior subordinated Debt Securities
are to be issued pursuant to an Indenture dated as of July 1, 1996 (the "SENIOR
SUBORDINATED DEBT INDENTURE") between the Company and The First National Bank of
CHICAGO, as trustee. The junior subordinated Debt Securities are to be issued
pursuant to an Indenture (the "JUNIOR SUBORDINATED DEBT INDENTURE") between the
Company and The First National Bank of Chicago, as trustee. The Junior
Subordinated Debt Trust Securities are to be issued pursuant to an indenture
(the "JUNIOR SUBORDINATED DEBT TRUST INDENTURE") between the Company the The
First National Bank of Chicago as trustee. The First National Bank of Chicago in
its capacity as trustee under the Senior Indenture, the Subordinated
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Indenture, the Junior Subordinated Indenture is referred to herein as the
"TRUSTEE" and the Senior Indenture, Subordinated Indenture, Junior Subordinated
Indenture and the Junior Subordinated Debt Trust Indenture are referred to
herein collectively as the "INDENTURES."
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such documents, corporate records, certificates of
public officials and other instruments as we have deemed necessary for the
purposes of rendering this opinion.
On the basis of the foregoing, we are of the opinion that:
1. When the Indentures and any supplemental Indenture to be entered
into in connection with the issuance of any Debt Security have been duly
authorized, executed and delivered by the Trustee and the Company, the
specific terms of a particular Debt Security have been duly authorized and
established in accordance with the applicable Indenture and such Debt
Security has been duly authorized, executed, authenticated, issued and
delivered in accordance with the applicable Indenture and the applicable
underwriting or other agreement, such Debt Security will constitute a valid
and binding obligation of the Company, enforceable in accordance with its
terms, except as (a) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or
similar laws now are hereinafter in effect relating to or affecting the
enforcement of creditors' rights generally and (b) the availability of
equitable remedies may be limited by equitable principles of general
applicability (regardless of whether considered in a proceeding at law or
in equity).
2. Upon designation of the relative rights, preferences and
limitations of any series of Preferred Stock by the Board of Directors of
the Company and the proper filing with the Secretary of State of the State
of Delaware of a Certificate of Designation relating to such series of
Preferred Stock, all necessary corporate action on the part of the Company
will have been taken to authorize the issuance and sale of such series of
Preferred Stock proposed to be sold by the Company, and when such shares of
Preferred Stock are issued and delivered in accordance with the applicable
underwriting or other agreement, such shares of Preferred Stock will be
validly issued, fully paid and non-assessable, enforceable in accordance
with their terms, except as (a) the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium
or similar laws now or hereinafter in effect relating to or effecting the
enforcement of creditors' rights generally and (b) the availability of
equitable
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remedies may be limited by equitable principles of general applicability
(regardless of whether considered in a proceeding at law or in equity).
3. When necessary corporate action on the part of the Company has
been taken to authorize the issuance and sale of such shares of Common
Stock proposed to be sold by the Company, and when such shares of Common
Stock are issued and delivered in accordance with the applicable
underwriting or other agreement, such shares of Common Stock will be
validly issued, fully paid and non-assessable.
4. When the Guarantees have been duly authorized by the Company,
the applicable Guarantee Agreement has been duly executed and delivered and
the Preferred Securities have been duly issued and delivered by the
applicable Trust as contemplated by the Registration Statement and any
prospectus supplement relating thereto, the Guarantees will constitute
valid and binding obligations of the Company, enforceable in accordance
with their terms, except as (a) the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium
or similar laws now or hereinafter in effect relating to or affecting the
enforcement of creditors' rights generally and (b) the availability of
equitable remedies may be limited by equitable principles of general
applicability (regardless of whether considered in a proceeding at law or
in equity).
5. When the Stock Purchase Units and Stock Purchase Contracts have
been duly authorized by the Company, the applicable Purchase Contract
Agreement and Pledge Agreement have been duly executed and delivered, the
Stock Purchase Units and Stock Purchase Contracts will constitute valid and
binding obligations of the Company, enforceable in accordance with their
terms, except as (a) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or
similar laws now or hereinafter in effect relating to or affecting the
enforcement of creditors' rights generally and (b) the availability of
equitable remedies may be limited by equitable principles of general
applicability (regardless of whether considered in a proceeding at law or
in equity).
In connection with the opinions expressed above, we have assumed that,
at or prior to the time of the delivery of any such security, (i) the Board of
Directors shall have duly established the terms of such security and duly
authorized the issuance and sale of such security and such authorization shall
not have been modified or rescinded; (ii) the Registration Statement shall have
been declared effective and such effectiveness shall not
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have been terminated or rescinded; and (iii) there shall not have occurred any
change in law affecting the validity or enforceability of such security. We have
also assumed that none of the terms of any security to be established subsequent
to the date hereof, nor the issuance and delivery of such security, nor the
compliance by the Company with the terms of such security will violate any
applicable law or will result in a violation of any provision of any instrument
or agreement then binding upon the Company, or any restriction imposed by any
court or governmental body having jurisdiction over the Company.
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York, the federal laws of the
Unites States of America and the General Corporation Law of the State of
Delaware.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In addition, we consent to the reference to us under the
caption "Legal Matters" in the prospectus.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by or furnished to any other person without our prior written
consent.
Very truly yours,
/s/ Davis Polk & Wardwell