"Kick Out" Clauses with Buyer Financing Contingency

[Dan Horn]

Hi all,

Here's a scenario my fiancee and I are in. Would love to have some insight if anyone has experience with this!

We found a house that has an accepted offer on it, but that offer has a contingency that the Buyer first needs to sell their current house before they will close on the new house. The seller was able to continue pursuing other offers as part of the contingency. We loved the house and made an offer at asking price and offered to close in 30 days. The seller accepted our offer, which started a 48 hour "kick out" clause, where the first Buyer has to show proof of funds/financing that they can close on the house without selling their current home (they haven't listed it yet). Our broker is making it sound fairly black and white - that if they show proof of funds/financing, the Seller has no choice but to accept the first offer and move forward with them. 

My gut feeling is that the Seller has some gray area here to select which offer they like. For example, does Buyer 1 also have to match our 30 day close in order to honor the contingency? 

In summary, what I'm wanting to know is if the Seller can still elect to go with our offer even if the Buyer shows proof of funds/financing. Will we have an opportunity to counter at a higher price to help our chances, or is it truly a done deal for Buyer 1 if they show proof of funds/financing?

Thanks for your help!