In the event any Party brings an Action to enforce or determine any rights under this Agreement or the Transactions, the Parties agree that the court referred to in Section 11.1 shall, only upon a clear demonstration that one Party is the non-prevailing party in such Action, order the non-prevailing Party to pay the reasonable out-of-pocket attorneys’ fees and expenses incurred by the prevailing Party and promptly after the entry of a final and nonappealable order of such court to such effect, the non-prevailing Party shall pay to the prevailing Party all such costs and expenses; provided that , in any such Action, if a Party seeking monetary recovery is awarded some, but less than the full amount, of the recovery sought, the Party receiving such award shall be deemed the prevailing Party if such award represents 50% or more of the amount originally sought, and the other Party shall be deemed the prevailing Party if the amount awarded represents less than 50% of the amount originally sought; and provided , further , that in either such case of partial recovery, the amount of the prevailing Party’s attorneys’ fees and expenses reimbursed pursuant to this Section 11.3 shall be limited to a percentage of such fees and expenses equal to (i) the percentage recovered of the amount originally sought, if the prevailing Party was the recipient of the award, or (ii) the percentage of the amount originally sought that was not recovered, if the prevailing Party was the other Party.