Adrian is in default, but the seller’s remedy is capped by the enforceable liquidated-damages clause.

**Financing-contingency defense: fails.**

Under Kepler Rule 6, a financing contingency protects the buyer only if the buyer:

- applies for financing by the stated deadline,
- uses diligent efforts, and
- gives timely termination notice.

Adrian waited 12 days to apply when the contract required application within 5 days. He did not terminate before the contingency expired, and the lender’s denial came on day 24—after the contingency period. Once the contingency expired without termination, Adrian was obligated to close. The financing denial does not excuse his failure to close.

**Six-percent clause: enforceable, not a penalty.**

The contract’s liquidated damages are:

- 6% of $1,800,000 = **$108,000**.

That amount is within Kepler’s 10% residential safe harbor. The parties negotiated at arm’s length, the seller took the property off the market, and actual loss from a failed sale was difficult to estimate at contract formation. The clause also expressly recited market movement, carrying costs, and lost opportunities. Therefore, $108,000 was a reasonable forecast, not a punishment.

**Later actual damages do not invalidate the clause.**

The seller later sold for $1,620,000, claiming:

- price loss: $180,000
- carrying costs: $22,000
- total actual damages: $202,000

Under Kepler Rule 3, a liquidated-damages clause is not invalid merely because actual damages later turn out higher or lower than the forecast. So the seller cannot use the higher actual loss to escape the contract’s cap.

**Exact liquidated amount and shortfall:**

| Item | Amount |
|---|---:|
| Purchase price | $1,800,000 |
| Liquidated damages: 6% | $108,000 |
| Earnest-money deposit already held | $90,000 |
| Additional shortfall Adrian owes | **$18,000** |

Because the contract expressly allows the seller to retain the deposit and recover the shortfall between the deposit and the liquidated amount, the seller may keep the $90,000 and collect an additional **$18,000**, not $112,000.

**Seller cannot recover resale loss, carrying costs, specific performance, or attorney fees.**

The contract says liquidated damages are the seller’s **sole and exclusive remedy**. Under Kepler Rule 4, the seller therefore cannot also recover:

- resale loss,
- carrying costs,
- actual damages, or
- specific performance.

The seller’s demand for $112,000 in additional actual damages is barred. Also, there is no attorney-fee provision and no rule authorizes fees, so the seller cannot recover attorney fees.

**Settlement and litigation position for Adrian:**

Adrian should:

1. Concede that he defaulted and that the liquidated-damages clause is enforceable.
2. Agree to allow the $90,000 deposit to be released to the seller.
3. Tender/pay the additional **$18,000** shortfall.
4. Not pay the claimed $112,000 in actual damages.
5. Not argue that the clause is unenforceable—that would expose him to actual damages. Instead, he should affirm the clause as the exclusive remedy.
6. If sued, plead the liquidated-damages clause as an affirmative defense and seek a declaration that the seller’s total recovery is capped at $108,000, with the deposit credited against that amount.

**Bottom line:** Adrian owes **$108,000 total**, satisfied by the **$90,000 deposit** plus an **$18,000 additional payment**. The seller may not recover anything more.