EXHIBIT 4.2.F
CONSENT TO WAIVER
Usurf America, Inc.
6005 Delmonico Drive, Suite 140
Colorado Springs, Colorado, 80919
April ___, 2004
Each Purchaser party to that certain Securities Purchase Agreement, dated March
5, 2004.
Re: Consent to Waiver
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Dear Purchasers:
Usurf America, Inc., (the "Company") is contemplating a proposed
private offering of its securities to an affiliated fund of Crestview Capital
Master LLC ("Crestview"), of up to $1,500,000 of 8% secured convertible
debentures and warrants to purchase common stock of the Company on or prior to
April _____, 2004 (the "Proposed Transaction"). Each of the above named persons,
pursuant to the Securities Purchase Agreement dated on or about March 5, 2004,
(collectively the "Purchase Agreement") by and among the Company and each of the
addressees to this letter (the "Purchasers"), may have certain rights which they
are hereby requested to waive in order to enable the Company to properly
consummate the Proposed Transaction.
The Company hereby requests that each Purchaser waive any rights it may
possess under the following provisions as they relate solely to the Proposed
Transaction:
1. Section 4.4 of the Purchase Agreement which prohibits the
Company from selling any security that would be integrated
with the offer or sale of secured convertible debentures and
warrants.
2. Section 4.13 of the Purchase Agreement which prohibits the
Company from issuing any Capital Shares or Capital Shares
Equivalents (a "Subsequent Financing") for 18 months after the
effective date of the Registration Statement without offering
each Purchaser the right to participate in up to 100% in such
Subsequent Financing.
3. Section 4.14 of the Purchase Agreement which prohibits the
Company from issuing any other Capital Shares or Capital
Shares Equivalents until after the 90th day after the
effective date of the Registration Statement.
4. Section 4.17 of the Purchase Agreement which requires the
Company to issue additional shares of Common Stock to such
holder at the Discounted Purchase Price if the Company issues
any Capital Shares or Capital Shares Equivalents entitling any
person to acquire shares of Common Stock at a price per share
less than the effective price paid by a holder under the
Purchase Agreement for 18 months after the Closing Date.
5. Section 6(b) of the Registration Rights Agreement which
prohibits the Company from including additional shares on the
Registration Statement as they solely relate to the Proposed
Transaction.
The convertible debentures issuable under the Proposed Transaction
shall rank pari passu with all other debentures now or hereafter issued by the
Company.
The Company agrees and acknowledges that the waivers granted hereunder
relate only to the Proposed Transaction and any subsequent transactions by the
Company or modifications to the terms outlined above will require a separate
consent from the Purchasers. Except as specifically waived by the terms of this
letter, the Purchase Agreement and the exhibits thereto shall remain unmodified
and in full force and effect, and shall not be in any way changed, modified or
superseded by the terms set forth herein. CAPITALIZED TERMS USED AND NOT
OTHERWISE DEFINED HEREIN THAT ARE DEFINED IN THE PURCHASE AGREEMENT SHALL HAVE
THE MEANINGS GIVEN SUCH TERMS IN THE PURCHASE AGREEMENT.
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This letter may be executed in any number of counterparts, all of which
taken together shall constitute one and the same instrument and shall become
effective when counterparts have been signed by each party and delivered to the
other parties hereto, it being understood that all parties need not sign the
same counterpart.
Nothing contained herein, and no action taken by any Purchaser pursuant
thereto, shall be deemed to constitute the Purchasers as a partnership, an
association, a joint venture or any other kind of entity, or create a
presumption that the Purchasers are in any way acting in concert or as a group
with respect to such obligations or the transactions contemplated by this
letter. Each Purchaser shall be entitled to independently protect and enforce
its rights, including without limitation, the rights arising out of this letter,
and it shall not be necessary for any other Purchaser to be joined as an
additional party in any proceeding for such purpose. Each Purchaser has been
represented by its own separate legal counsel in their review and negotiation of
this letter. The Company has elected to provide all Purchasers with the same
terms for the convenience of the Company and not because it was required or
requested to do so by the Purchasers.
Please signify your consent to this request by signing this letter in
the space indicated below. This waiver of your rights with respect to the
Proposed Transaction shall not affect your rights relative to future proposals
during the period described in the relevant section of the Purchase Agreement.
Very truly yours,
USURF AMERICA, INC.
By: /s/ Douglas O. McKinnon
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Name: Douglas O. McKinnon
Title: President and CEO
Accepted and Agreed to:
Name of Purchaser:
Name of Authorized Signatory:
Title of Authorized Signatory:
Signature of Authorized Signatory:
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