(a) The term with recourse means, in connection with the sale of a loan or a participation interest in a loan, an agreement or arrangement under which the purchaser is to be entitled to receive from the seller a sum of money or thing of value, whether tangible or intangible (including any substitution), upon default in payment of any loan involved or any part thereof or to withhold or to have withheld from the seller a sum of money or anything of value by way of security against default. The recourse liability resulting from a sale with recourse shall be the total book value of any loan sold with recourse less:
(1) The amount of any insurance or guarantee against loss in the event of default provided by a third party,
(2) The amount of any loss to be borne by the purchaser in the event of default, and
(3) The amount of any loss resulting from a recourse obligation entered on the books and records of the savings association.
(b) The term with recourse does not include loans or interests therein where the agreement of sale provides for the savings association directly or indirectly:
(1) To hold or retain a subordinate interest in a specified percentage of the loans or interests; or
(2) To guarantee against loss up to a specified percentage of the loans or interests, which specified percentage shall not exceed ten percent of the outstanding balance of the loans or interests at the time of sale: Provided, That the savings association designates adequate reserves for the subordinate interest or guarantee.
(c) This definition does not apply for purposes of determining the capital adequacy requirements under 12 CFR part 3 or part 167, as applicable. [76 FR 49043, Aug. 9, 2011, as amended at 79 FR 11313, Feb. 28, 2014]