BT argues that the notice obligation set forth in section 11.02(a) of the Merger Agreement was not a condition precedent to CIH’s indemnification obligations, and that CIH cannot be excused from its duty to indemnify BT unless it can show actual prejudice. CIH responds that the notice obligation was a constructive condition creating a dependent obligation with CIH’s duty to indemnify BT. Under New York law, a court will not ordinarily construe a contractual duty as a condition precedent “absent clear language showing that the parties intended to make it a condition.” Unigard Sec. Ins. Co., Inc. v. N. River Ins. Co., 79 N.Y.2d 576, 584 N.Y.S.2d 290, 594 N.E.2d 571, 573 (1992); see, e.g., MHR Capital Partners LP v. Presstek, Inc., 12 N.Y.3d 640, 884 N.Y.S.2d 211, 912 N.E.2d 43, 47 (2009) (<HOLDING>); Erickson Air-Crane Inc. v. E.A.C. Holdings,
holding that a contract is not effective until the performance of the conditions precedent and that a condition precedent calls for the happening of some event or the performance of some act after the terms of the contract have been agreed on before the contract shall be binding on the parties holding that an employment at will agreement is an enforceable contract until terminated by either party holding that language in an escrow agreement stating that contract documents were not to be released unless and until a party executed and agreed to a deal on terms outlined in the agreement was an express condition precedent holding that a party was not entitled to damages when an agreement clearly designated a provision as a condition precedent and not a promise to perform holding that a condition was precedent to performance because the contract language did not explicitly state that it was precedent to formation